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

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

JOINT CASE MANAGEMENT STATEMENT filed by IXI IP,LLC, IXI Mobile (R&D) Ltd. and Apple, Inc. Modified on 2/15/2019

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8 1 John V. Picone III, Bar No. 187226 jpicone@hopkinscarley.com 2 Jennifer S. Coleman, Bar No. 213210 3 jcoleman@hopkinscarley.com HOPKINS & CARLEY 4 A Law Corporation The Letitia Building 5 70 South First Street San Jose, CA 95113-2406 6 7 mailing address: P.O. Box 1469 8 San Jose, CA 95109-1469 Telephone: (408) 286-9800 9 Facsimile: (408) 998-4790 10 Attorneys for Plaintiffs 11 IXI MOBILE (R&D) LTD. and IXI IP, LLC 12 Additional counsel in signature block 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 14 15 IXI MOBILE (R&D) LTD. et al., CASE NO. 4:15-CV-03752-HSG (Lead Case) 16 Plaintiffs, JOINT CASE MANAGEMENT STATEMENT 17 v. Date: February 21, 2019 18 Time: 2:00 p.m. 19 SAMSUNG ELECTRONICS CO., LTD., ET AL., Ctrm: Courtroom 2, 4th Floor 1301 Clay Street 20 Defendants. Oakland, CA 94612 Judge: Hon. Haywood S. Gilliam, Jr. 21 22 IXI MOBILE (R&D) LTD. et al., CASE NO. 4:15-CV-03755-HSG (Related Case) 23 Plaintiffs, 24 v. 25 APPLE INC., 26 Defendant. 27 28 30 Case No. 4:15-CV-03755-HSG 31 JOINT CASE MANAGEMENT STATEMENT 8 1 Pursuant to this Court's Order on October 22, 2018, Plaintiffs IXI Mobile (R&D) Ltd. and IXI IP, 2 LLC (collectively "IXI" or "Plaintiffs"), Defendants Samsung Electronics Co., Ltd. and Samsung 3 Electronics America, Inc. (hereinafter "Samsung"), and Defendant Apple Inc. (hereinafter "Apple") 4 (collectively "Defendants") submit this Joint Case Management Statement and [Proposed] Order. 5 1. Jurisdiction and Service: 6 This is an action for patent infringement arising under the patent laws of the United States, 35 7 U.S.C. § 101 et seq., and the Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. 8 9 §§ 1331 and 1338(a) and the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq. Venue is proper in this 10 judicial district pursuant to 28 U.S.C. §§ 1391(b) and (c) and 1400(b). This matter was transferred to the 11 above-captioned Court pursuant to the Order dated August 6, 2015, granting Defendants' Motion to 12 Transfer Venue to Northern District of California (Dkt. No. 79). 1 All parties have appeared. 13 2. Facts 14 This is a patent case, involving infringement assertions by IXI under U.S. Patent Nos. 7,016,648; 15 16 7,039,033; and 7,295,532 (collectively the "Patents-in-Suit") against products made by Samsung and 17 Apple. In 2014, IXI commenced these patent infringement actions in the Southern District of New York. 18 While the case progressed in SDNY, the parties engaged in discovery, including the taking of two 19 depositions related to claim construction (one fact and one expert), exchanging written discovery, and 20 making several productions of documents. The parties submitted several claim construction disclosures, 21 and IXI filed an opening claim construction brief. Thereafter, the case was transferred from SDNY to this 22 Court. 23 24 On June 18 and 19, 2015, Samsung and Apple filed Inter Partes Review petitions challenging the 25 validity of the asserted claims of the three Patents-in-Suit. IXI filed its responses to those petitions on 26 27 1 For simplicity, all referenced docket numbers are to the docket in the lead case IXI v. Samsung, CASE 28 NO. 4:15-CV-03752-HSG. Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 1 8 1 October 2, 2015. Defendants moved to stay this litigation pending resolution of the IPR petitions. This 2 Court granted the stay on November 12, 2015. Dkt. Nos. 119, 133. 3 On December 30, 2015, the PTAB instituted IPR proceedings for all of the challenged claims 4 from the patents, except for Claim 10 of the '532 Patent. On December 21, 2016, the PTAB issued its 5 Final Written Decisions in favor of Apple and Samsung, Dkt. No. 138, invalidating all of the instituted 6 claims of all three patents as unpatentable. IXI appealed only with respect to the '033 Patent, and the 7 Federal Circuit affirmed the PTAB's decision on September 10, 2018. 8 9 In March 2017, while IXI's appeal of the '033 Final Written Decision was pending, IXI requested 10 an ex parte reexamination of the '033 Patent. During the ex parte reexamination, IXI amended claim 56 11 and added claims 57 through 124 to the '033 Patent. On February 1, 2018, the USPTO issued a 12 reexamination certificate that granted IXI these additional claims. 13 On April 3, 2018, Apple requested an ex parte reexamination of several claims of the '532 Patent, 14 including asserted Claim 10. The USPTO granted Apple's ex parte reexamination request on May 23, 15 16 2018 (the "'532 Reexam"). All of the challenged claims, including claim 10 of the '532 Patent, stand 17 currently rejected on each of the four separate grounds proposed by Apple. In that proceeding, IXI has 18 sought to overcome the rejections to claim 10 and to add new claims to the '532 Patent. This 19 reexamination is presently ongoing. 20 On November 8, 2018, Apple filed six additional IPR petitions challenging the validity of the new 21 claims added to the '033 Patent during reexamination (the "Pending IPRs"). In the Pending IPRs, Apple 22 explained why it was not time-barred from pursuing IPR of new claims that IXI secured less than one 23 24 year before filing of the Pending IPRs and that did not exist at the time when IXI served Apple with a 25 complaint in this litigation. Apple also moved to join the Pending IPRs with the prior IPR of the '033 26 Patent, which was timely filed within one year of IXI's serving Apple with a complaint in this litigation 27 and remained pending when the Pending IPRs were filed. On January 30, 2019, IXI filed an opposition 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 2 8 1 to Apple's joinder motion. IXI's preliminary response is due March 4, 2019 and an institution decision is 2 expected by June 4, 2019. 3 3. Legal Issues: 4 The parties have identified the following principal remaining disputed issues: 5 ▪ whether Defendants have infringed and continue to infringe the Patents-in-Suit; 6 ▪ whether the Patents-in-Suit are valid and enforceable; 7 ▪ whether Defendants should be restrained and enjoined from infringing the Patents-in-Suit; and 8 ▪ whether this action is an exceptional case for awarding attorneys' fees under 35 U.S.C. §285. 9 4. Motions: 10 There is one motion currently pending before the Court: Plaintiffs' Motion to Lift Stay, Dkt. 145. 11 12 Because the briefing on that motion concluded last year, Defendants suggested that the Parties provide a 13 brief update to the Court regarding subsequent events. IXI believes such an update unnecessarily 14 rehashes Defendants' opposition briefing and raises irrelevant issues regarding. To this end, the Parties 15 provide Defendants' update and Plaintiffs' response. 16 Defendants' Update: 17 One week after submitting its Opposition to IXI's Motion to Lift Stay, Apple's counsel on 18 December 14 wrote to IXI's counsel to raise what it had recently learned: that Apple's expert from this 19 20 litigation had switched sides and was being used by IXI in the '532 Reexam. Indeed, IXI submitted a 21 declaration from Dr. Prasant Mohapatra to support patentability of the new '532 claims IXI has sought. 22 Apple had previously engaged Dr. Mohapatra to analyze IXI's patents, including the '532 Patent, to 23 assist Apple's defense of this litigation. Dr. Mohapatra received confidential and privileged information 24 about Apple's defense strategy, its products, and its theories regarding invalidity, claim construction, and 25 non-infringement, including technical details related to Apple's products accused of infringing the 26 27 asserted patents, including the '532 Patent. He also received thousands of dollars in fees. Recognizing 28 that his continued assistance would be required if and when the district court case emerged from the stay, Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 3 8 1 Apple never terminated his engagement, and in fact had recently confirmed its ongoing nature. Apple 2 promptly raised Dr. Mohapatra's conduct with IXI on December 17, 2018. IXI has since terminated Dr. 3 Mohapatra, replaced its reexamination counsel, and sought to withdraw Dr. Mohapatra's declaration. 4 IXI, however, refuses to withdraw the newly proposed claims of the '532 Patent crafted and supported 5 with Dr. Mohapatra's direction—claims necessarily and wrongfully informed by Apple's confidential 6 information. Apple is thus in the process of considering seeking further remedies, including through 7 proceedings before the PTO that may affect the '532 Reexam and thus the pending Motion to Lift Stay. 8 9 Apple will be ready to provide a further update to the Court at the hearing in this regard. 10 An institution decision in the six Pending IPRs on the new claims of the '033 Patent is expected 11 on or before June 4, 2019. As stated above, IXI filed an Opposition to Apple's Motion for Joinder in the 12 Pending IPRs. The PTO could potentially rule on this motion and decide whether the Pending IPRs were 13 timely filed prior to the institution decision. Regardless whether that motion is granted, Apple has 14 provided arguments for why the Pending IPRs of IXI's new claims are timely. 15 16 These recent developments further support maintaining the stay, as the PTO's decisions on these 17 issues will likely simplify this case. IXI's only asserted claim that survived IPR was claim 10 of the '532 18 Patent. That claim is currently subject to four rejections at the PTO in the '532 Reexam. With four 19 pending rejections and with no expert declaration to support IXI's arguments, the PTO is likely to greatly 20 simplify the case by cancelling the only asserted claim remaining. 21 Additionally, IXI has indicated it intends to seek to add to the case some or all of the 60 new 22 claims of the '033 patent, despite the Pending IPRs on those claims. This issue should be raised in a 23 24 motion. Defendants note their position that the addition of those claims at this time is inappropriate, and 25 good cause does not exist to do so. Furthermore, if the Pending IPRs are instituted and the claims 26 cancelled, the IPRs could moot the question of whether the new claims are appropriate to add and, thus, 27 substantially simplify the case. While IXI asserts that Apple is purposefully delaying this case by filing 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 4 8 1 proceedings at the PTO, and that the stay should be lifted, those proceedings are a direct result of actions 2 taken by IXI to secure new claims in ex parte reexamination—a proceeding in which Apple is not 3 allowed to participate—and this despite the PTAB's determination that the originally set of instituted 4 claims were all unpatentable. 5 Defendants further note that IXI has not previously filed a motion to amend its asserted claims 6 and appears to be attempting to raise a request for such relief for the first time in its "Plaintiffs' 7 Response" section below. Indeed, IXI did not share with Defendants its 1.5 page argument to amend its 8 9 contentions until after 3:00 p.m. Pacific time today, the day the CMC statement was due. Plaintiffs' 10 approach is contrary to the local rules' requirement that a request for a court order, such as leave to 11 amend, "must be presented" by one of six means. See Civil L.R. 7-1(a); see also Pat. L.R. 3-6 (requiring 12 "order of the Court upon a timely showing of good cause" for amending infringement contentions). 13 Notably, none of these six means includes an informal request in a CMC statement. Plaintiffs' last- 14 minute attempt to interject this issue is also inconsistent with its previous representation to the Court that 15 16 a motion to amend the contentions was "beyond the scope of the present motion to lift the stay." Dkt. 17 139 at 9, n.7. 18 In addition to procedural problems, Plaintiffs' request is substantively incorrect and premature at 19 this time. The numerous new claims that IXI seeks to add are currently subject to a pending IPR petition. 20 Further, the single remaining claim currently asserted in this case (claim 10 of the '532 Patent) stands 21 rejected in reexamination. If this claim is invalidated by the Patent Office, none of the currently asserted 22 claims will remain. In such a scenario, it would be inappropriate to use the amendment procedure to 23 24 bootstrap new claims into a litigation that no longer includes any of the originally asserted claims. Such 25 bootstrapping is further inappropriate given that the '033 reexamination claims were obtained by IXI in 26 an attempt to circumvent invalidation by the PTAB of all original claims of the '033 Patent. Defendants 27 will clearly be prejudiced if these new claims are injected into this case. 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 5 8 1 In sum, the Court should not consider Plaintiffs' informal and improper request to amend its 2 contentions at this time. If and when the stay is lifted, Plaintiffs can bring a motion that complies with 3 both the civil and patent local rules—and allows a proper opportunity for Defendants to respond. 4 Plaintiffs' Response: 5 While this issue is fully briefed in IXI's Motion to Lift Stay, Dkt. 145 and Reply Dkt. 148, IXI will 6 briefly respond to the other issues raised by Defendants. 2 7 1. Dr. Prasant Mohapatra's Conduct in the Reexamination Proceedings Is Irrelevant 8 9 Most of Defendants' update is spent complaining about the former expert Dr. Prasant Mohapatra. 10 To be clear, Dr. Mohapatra never disclosed his conflict to IXI and as a result IXI was not aware of his 11 prior involvement with Apple as a consultant; nor did Apple ever disclose him in this case. Thus, IXI 12 had no way of knowing of this supposed conflict. When IXI learned that Dr. Mohapatra may have even 13 had a potential conflict issue, it immediately terminated him, changed its reexamination counsel, and 14 sought to withdraw Dr. Mohapatra's declaration. At best, Apple has a dispute with its former expert. 15 16 Regardless, this issue has no bearing on the issues to be decided in this case. 17 2. Good Cause Exists for IXI to Amend Its Asserted Claims 18 Patent Local Rule 3-6 allows amendment "upon a timely showing of good cause." 3 This inquiry 19 considers first whether the moving party was diligent in amending its contentions and then whether the 20 nonmoving party would suffer prejudice if the motion to amend were granted. Here, good cause exists 21 22 23 2 IXI notes that Defendants only provided the "Defendants' Update" portion of this filing on February 13, 24 2019—the day before the CMC statement was due. IXI then promptly responded. IXI then waited until 25 10:57 pm (C.T.) on the date the CMC statement was due for Defendants to provide their revisions. 3 IXI notes that nothing in the text of Patent L.R. 3-6 requires the parties address this issue in briefing, as 26 the text only requires a showing. IXI is willing to brief this issue should the Court desire briefing, but IXI provides this response to Defendants' newly raised arguments that no good cause would exist. IXI 27 also notes that the parties have exchanged two proposals to resolve some of the issues raised in the motion to lift the stay and to address IXI amending the asserted claims or briefing that issue. To the 28 extent the parties reach any agreements on these issues, IXI will notify the Court. Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 6 8 1 because IXI has been diligent in attempting to lift the stay and amend its asserted claims, and Defendants 2 will not suffer any prejudice. 3 First, IXI has been diligent. None of the new claims of the '033 Patent existed when IXI prepared 4 its original infringement contentions before the stay. It was only after Defendants filed their IPRs and 5 the Court granted the stay that the PTO issued IXI these new claims. Thus, good cause exists to add 6 these claims because information that could not be known when the original contentions were prepared 7 supports finding good cause. See Pat. L.R. 3-6 (c) (listing recent discovery of nonpublic information as 8 9 support for a finding of good cause to amend infringement contentions). Moreover, after the '033 10 Reexamination and the '033 Patent's IPR appeal were final, IXI diligently move to lift the stay so that it 11 could assert the new claims, filing its status letter only eleven days after the Federal Circuit's opinion. 12 IXI then diligently prepared its motion to lift the stay so that these new claims could be added to this 13 case, which resulted in this joint filing. Had IXI not sought to lift the stay, Defendants no doubt would 14 have cried a lack of diligence later in this case. 15 16 Second, Defendants will not suffer prejudice. Defendants were the ones who first sought 17 administrative review of IXI's '033 Patent when they filed their IPR petitions. The PTO has now 18 reviewed the '033 Patent and granted IXI new claims that it believes are valid. That IXI received new, 19 narrower claims is no prejudice to Defendants because narrower amended claims are a possible outcome 20 in IPR proceedings. The fact IXI received these claims through a different administrative process is 21 simply an indirect consequence of the administrative review that Defendants themselves first sought. 22 Ultimately, Defendants choose to put these issues to the PTO, and the PTO has decided that IXI has valid 23 24 claims of the '033 Patent. Defendants are also not prejudiced because the scope of this case is much the 25 same—the technology of the '033 Patent. As a result, much of the work put into this case to date 26 overlaps issues implicated by the new claims of the '033 Patent, e.g. claim construction, validity, 27 infringement. After all, this case is still about the '033 Patent and, if anything, these claims are narrower. 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 7 8 1 Nor have Defendants been deprived of any invalidity defenses. Defendants will still be able to assert 2 validity defenses for these new claims in this case even if IPRs are now unavailable. 3 5. Amendment of Pleadings: 4 The parties agree that no additional parties may be joined except with leave of the Court. IXI 5 requests that the Court allow it to amend its asserted claims because the issue of new claims presents 6 good cause to do so. As discussed above, Defendants believe that this request for leave to amend the 7 asserted claims should be raised in a motion under Civil L.R. 7-1(a) and 7-2(a), to which Defendants 8 9 expect to file an opposition. 4. 10 6. Evidence Preservation: 11 Each of the parties have reviewed the ESI Guidelines and each of the parties believes that it has 12 taken appropriate and reasonable measures to preserve evidence relevant to a party's claims and defenses 13 in this matter. 14 7. Disclosures: 15 16 Each party served initial disclosures pursuant to Fed. R. Civ. P. 26(a)(1)(A) in January 2015. 17 8. Discovery: 18 The parties began the exchange of written discovery in October 2014 and have propounded and 19 responded to document discovery, including various document and source code productions, and to 20 multiple sets of written discovery. The parties have also held various meet and confers regarding alleged 21 deficiencies in document productions and written discovery. IXI and Apple have served several third- 22 party subpoenas requesting documents and depositions, and various third-party productions have been 23 24 made. Beginning in May 2015, IXI spent multiple days reviewing source code for each of the 25 Defendants. IXI contends that process is not complete. In July 2015, Defendants deposed one of the 26 27 4 The parties previously agreed "that amended pleadings may not be filed except with leave of the 28 Court." (Dkt. 129, 10/29/15 Joint Case Management Statement at 4). Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 8 8 1 inventors of the Patents-in-Suit and IXI's expert for claim construction purposes. IXI has served each 2 Defendant with a Notice of Deposition pursuant to Federal Rule 30(b)(6), each of which awaits final 3 scheduling. The parties had continued to meet and confer on open discovery issues until the case was 4 stayed. 5 The parties negotiated a Protective Order that was entered by the Court in the S.D.N.Y. (Dkt. 6 Nos. 60, 61) and is still in effect in this case. That Protective Order contains certain limitations regarding 7 the number of pages of source code IXI is permitted to print from its review and total number of 8 9 individuals permitted to review source code. IXI contends the Protective Order will need to be modified 10 to allow for additional source code discovery and additional source code reviewers given inter alia the 11 passage of time, introduction of new products, the large amount of code produced by Defendants, the 12 new claims IXI intends to assert, and its new counsel. 13 A. Limits on Discovery: 14 The parties previously agreed that IXI is limited to seventy (70) hours of deposition of fact 15 16 witnesses of Samsung and (70) hours of deposition of fact witnesses of Apple. Samsung and Apple are 17 limited to seventy (70) hours each of deposition of fact witnesses of IXI. Samsung and Apple shall make 18 reasonable efforts to conduct their depositions of IXI witnesses jointly to the extent practical. In no event 19 shall any deposition count as less than three (3) hours toward a party's total deposition hours. The parties 20 intend to take depositions of expert witnesses and third-party witnesses, which shall not be included in 21 the 70-hour limits. 22 B. Production of ESI: 23 24 The parties have met and conferred multiple times and have negotiated a nearly complete 25 protocol for ESI production prior to the stay of the case. If the stay is lifted, the parties will complete the 26 negotiation and submit the proposed protocol to the Court for review and approval. 27 9. Class Actions: 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 9 8 1 These matters are not class actions. 2 10. Related Cases: 3 The two above-captioned cases have been accepted as related. 4 11. Relief: 5 IXI's Statement: 6 IXI seeks judgment that Defendants have directly and indirectly infringed and continue to 7 infringe the patents in-suit. IXI seeks damages under 35 USC § 284 in amount no less than a reasonable 8 9 royalty, attorney fees under 35 U.S.C. § 285, and such relief at law and in equity as the Court may deem 10 just and proper. 11 Defendants' Statement: 12 The Defendants deny that any of the Defendants' products infringe the Patents-in-Suit and, even 13 if a jury disagrees, that IXI is owed the damages it seeks. The Defendants believe that each asserted 14 claim of the Patents-in-Suit is invalid. The Defendants also believe that this is an exceptional case and 15 16 seek their attorneys' fees, costs, and expenses incurred in these actions. 17 12. Settlement and ADR: 18 The parties have requested an Early Settlement Conference with a Magistrate Judge. 19 13. Consent to Magistrate: 20 All parties do not consent to disposition of this case by a Magistrate Judge. 21 14. Other References: 22 The parties do not believe that this case is suitable for reference to binding arbitration, a special 23 24 master, or the Judicial Panel on Multidistrict Litigation. 25 15. Narrowing of Issues: 26 These matters originally involved an additional patent, U.S. Patent Nos. 7,426,398, for which IXI 27 has stipulated to the dismissal of all claims. In addition, all but one of the claims asserted in IXI's 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 10 8 1 existing infringement contentions for the '033, '532, and '648 Patents have been found invalid by the 2 PTAB, and the USPTO has formally cancelled these claims. The parties will continue to explore 3 potential ways to narrow the issues during the litigation. 4 16. Expedited Trial Procedures: 5 This matter is not the type of case that that can be handled under the Expedited Trial Procedure of 6 General Order No. 64 Attachment A. 7 17. Scheduling: 8 9 IXI contends that the stay should be lifted to allow it to assert new claims of the '033 Patent that 10 resulted from the various administrative proceedings that began with Defendants' petitions for IPR. The 11 PTO issued these claims over all the prior art that Defendants asserted in their IPR petitions. Also, that 12 IXI received new, narrower claims as a result of the stay they requested cannot come as a surprise to 13 Defendants. Narrower amended claims are a possible outcome in IPR proceedings, and the fact IXI 14 received these claims through a different administrative process is inconsequential. Defendants sought to 15 16 completely invalidate IXI's '033 Patent and failed. It is now time to allow these new claims to be added 17 into this case. Moreover, IXI believes that it is not necessary to waste the Court's and the parties' 18 resources on additional briefing related to amending the asserted claims as the good cause standard is 19 readily met in these circumstances. Good cause exists to amend IXI's asserted claims because the new 20 claims of the '033 Patent did not exist when IXI identified its asserted claims so IXI could not have 21 asserted them at that time. Thus, IXI respectfully requests that the Court address the issue IXI amending 22 its asserted claims at the Joint Case Management status conference on February 21, 2019. 23 24 Defendants assert that the stay should remain in place, given the ongoing proceedings in the PTO, 25 specifically the '532 Reexam and the Pending IPRs on the '033 Patent. Should the Court disagree, 26 Defendants believe that IXI should file a motion regarding its request to add new claims from the '033 27 patent reexamination to this case—and that IXI's attempt to seek such relief in the case management 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 11 8 1 statement, without a duly noticed motion, violates Civil L.R. 7-1(a) and 7-2(a). Defendants' position is 2 that such new claims should not be added, and the case should proceed with regard to Claim 10 of the 3 '532 Patent. Further, this threshold issue should be determined through motion practice before the Court 4 sets a schedule for this case, because adding new claims of the '033 Patent will add complexity to the 5 case. Thus, the Defendants propose the following briefing schedules on this threshold issue: 6 Event Defendants' Proposed Briefing Schedule 7 IXI to File Motion for Leave for Amendment of 14 days after Court orders the stay to be lifted 8 Complaint/Contentions (the "Motion") 9 Defendants' Opposition to the Motion 14 days after IXI files the Motion IXI's Reply ISO the Motion 7 days after Defendants Opposition to the 10 Motion 11 Hearing on the Motion At the Court's convenience 12 Submission of further case schedule in View of the 30 days after Court issues a decision on the Outcome of the Motion Motion 13 14 Defendants believe it is premature to set a full schedule for the reasons stated above, including the 15 uncertainty around the scope of the case. To the extent that the Court intends to set a full schedule now, 16 Defendants propose a schedule below, alongside IXI's proposed schedule. 17 Event IXI's Proposed Defendants' 18 Deadline Proposed Deadline Pat. L.R. 3-1. Serve Amended Disclosure of 19 Asserted Claims and Infringement Contentions May 2, 20196 20 Defendants submit that these contentions should include source code citations 5 21 22 23 5 Defendants assert that IXI previously agreed that "where appropriate, it will amend its contentions with source code citations after its review has been completed." (Dkt. 129, 10/29/15 Joint Case Management 24 Statement at 5). By May 2, 2019, Defendants assert IXI will have had ample time to review the source 25 code produced by Defendants in early 2015. IXI asserts that the previous claims for which it made this statement have been canceled and that additional code may need to be produced for the new claims. In 26 addition, as discussed above, it is IXI's position that it will needed to be allowed to print additional pages of source code and will need additional source code reviewers under the protective order to properly 27 analyze the code. 6 Defendants believe that, in the event a ruling has not been made on IXI's motion to amend 30 days 28 before this deadline, the schedule should be adjusted accordingly. Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 12 8 1 Event IXI's Proposed Defendants' Deadline Proposed Deadline 2 Pat. L.R. 3-3. Serve Invalidity Contentions May 31, 20197 June 17, 2019 3 Defendants expect that these contentions will address subject matter of IPRs and reexaminations 4 (and any new claims for which leave is granted) 5 Pat. L.R. 4-1. Exchange of Proposed Terms June 7, 2019 July 1, 2019 Pat. L.R. 4-2. Exchange of Preliminary June 21, 2019 July 29, 2019 6 Constructions and Extrinsic Evidence for New 7 Issues 8 Pat. L.R. 4-3. Joint Claim Construction and Pre- July 15, 2019 August 16, 2019 Hearing Statement 9 Pat. L.R. 4-4. Completion of Claim Construction July 30, 2019 September 16, 2019 10 Discovery (including depositions of experts who submitted declarations in support of claim 11 construction positions) 12 Pat. L.R. 4-5(a) Opening Claim Construction Brief August 14, 2019 October 1, 2019 13 Defendants submit that this brief (and any expert declaration) shall address new issues, if any, 14 beyond the claim construction brief (and expert declaration) previously filed by IXI8 15 Pat. L.R. 4-5(b). Defendants File Responsive Claim August 28, 2019 October 17, 2019 16 Construction brief 17 Pat. L.R. 3-8 Damages Contentions July 20, 2019 August 6, 2019 18 Pat. L.R. 4-5(c). IXI Files Reply Claim September 4, 2019 October 25, 2019 Construction brief 19 Pat. L.R. 3-9 Responsive Damages Contentions August 19, 2019 September 5, 2019 20 Technology Tutorial / Pat. L.R. 4-6. Claim Subject to the Subject to the Construction Hearing (Markman) convenience of the convenience of the 21 Court's calendar Court's calendar 22 23 24 25 7 IXI states that in an effort to compromise, IXI has substantially modified its original proposals to 26 account for Defendants' scheduling concerns. However, IXI still believes shortened initial deadlines are appropriate given the substantial amount of work that occurred on claim construction before the stay. 27 8 IXI previously represented that "IXI intends to replace citations to cases in the S.D.N.Y. in its previously-filed brief with citations to cases in the N.D. Cal., but will not substantively modify its 28 arguments or positions." (Dkt. 51, 10/29/15 Joint Case Management Statement at 7, n. 2). Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 13 8 1 Event IXI's Proposed Defendants' Deadline Proposed Deadline 2 Close of fact discovery 60 days after the January 25, 20209 entry of a Claim 3 Construction Order 4 Deadline to file discovery motions relating to fact 7 days after the close 7 days after the close discovery of fact discovery of fact discovery 5 Opening expert reports 14 days after the 45 days after claim 6 close of fact construction ruling 10 discovery 7 Rebuttal expert reports 28 days after opening 45 days after opening 8 expert reports expert reports 9 Close of expert discovery 14 days after rebuttal 45 days after rebuttal expert reports expert reports 10 Opening summary judgment/Daubert briefs 14 days after close of 21 days after close of 11 expert discovery expert discovery Responsive summary judgment/Daubert briefs 14 days after 14 days after 12 Opening summary Opening summary 13 judgment/Daubert judgment/Daubert briefs briefs 14 Reply summary judgment/Daubert briefs 7 days after 10 days after 15 Answering summary Answering summary judgment/Daubert judgment/Daubert 16 briefs briefs 17 Summary judgment hearings To be set by Court To be set by Court Pretrial Conference To be set by Court To be set by Court 18 Trial To be set by Court To be set by Court 19 20 18. Trial: 21 These cases, even though they are consolidated for pre-trial proceedings, will each be tried to 22 separate juries. The parties have conferred and their present best estimate of the length of trial is: 23 24 9 Defendants' proposal is based upon the schedule previously set in this case prior to transfer from the 25 Southern District of New York, which set the close of fact discovery approximately three months after filing of the reply claim construction brief. (Ex. A, 12/12/14 Case Management Plan and Scheduling 26 Order at 2-3). 10 Defendants' proposal is based upon the schedule previously set in this case prior to transfer from the 27 Southern District of New York, which set the same 45 day intervals noted above for submission of opening expert reports, rebuttal expert reports, and close of expert discovery. (Ex. A, 12/12/14 Case 28 Management Plan and Scheduling Order at 3). Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 14 8 1 approximately two weeks for each trial, assuming each trial day starts at 8:30 a.m. and ends at 1:30 p.m. 2 as noted in the Court's Standing Order for Civil Cases, paragraph 8. 3 19. Disclosure of Non-Party Interested Entities or Persons: 4 The parties have filed their respective Corporate Disclosure Statements pursuant to Federal Rule 5 of Civil Procedure 7.1(a) and their Certificates of Interested Parties and Entities pursuant to Civil Local 6 Rule 3-15. 7 20. Other Issues 8 9 The parties do not believe that any other issues are appropriate for inclusion in this Joint Case 10 Management Statement and [Proposed] Order. 11 21. Additional Information Pursuant to Patent Local Rule 2-1 12 A. Proposed Modifications to the Obligations or Deadlines Set Forth in the Patent Local 13 Rules. 14 The parties' proposed schedule is set forth in Section 17 above. 15 B. How the Parties Intend to Educate the Court on the Technology at Issue. 16 The parties propose educating the Court on the technology at issue through a tutorial as set forth 17 in the above proposed schedule. The parties propose that, per this Court's Standing Orders, the Plaintiffs 18 be allowed to make no longer than a 45-minute presentation, followed by no longer than a 45-minute 19 20 presentation by the Defendants. The parties propose that a Claim Construction Hearing follow the 21 technology tutorial with 90 minutes allotted to the Plaintiffs and 90 minutes allotted to the Defendants 22 per this Court's Standing Orders. 23 24 25 26 27 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 15 8 1 Dated: February 14, 2018 HOPKINS & CARLEY A Law Corporation 2 By: /s/ John V. Picone III 3 John V. Picone III Jennifer S. Coleman 4 Aleksandr Korzh HOPLKINS & CARLEY 5 70 South First St. San Jose, CA 95113 6 Telephone: (408) 286-9800 7 Jason D. Cassady (pro hac vice) 8 jcassady@caldwellcc.com 9 Hamad M. Hamad (pro hac vice) hhamad@caldwellcc.com 10 Robert Seth Reich, Jr. (pro hac vice) CALDWELL CASSADY & CURRY P.C. 11 2101 Cedar Springs Rd. Ste. 1000 Dallas, TX 75201 12 Telephone: (214) 888-4848 13 Thomas Biemer (pro hac vice) 14 tbiemer@dilworthlaw.com John J. Higson (pro hac vice) 15 jhigson@dilworthlaw.com Joshua Wolson (pro hac vice) 16 jwolson@dilworthlaw.com 17 DILWORTH PAXSON LLP 1500 Market Street, Ste. 3500(E) 18 Philadelphia, PA 19106 19 Attorneys for Plaintiffs 20 IXI MOBILE (R&D) LTD. and IXI IP, LLC 21 Dated: February 14, 2018 KIRKLAND & ELLIS LLP 22 23 By: /s/ Todd M. Friedman Gregory S. Arovas, P.C. (admitted pro hac vice) 24 Todd M. Friedman, P.C. (admitted pro hac vice) KIRKLAND & ELLIS LLP 25 601 Lexington Avenue New York, New York 10022 26 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 27 greg.arovas@kirkland.com todd.friedman@kirkland.com 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 16 8 1 David Rokach (admitted pro hac vice) KIRKLAND & ELLIS LLP 2 300 N. LaSalle Chicago, Illinois 60654 3 Telephone: (312) 862-2000 Facsimile: (212) 862-2200 4 david.rokach@kirkland.com 5 Brandon Brown KIRKLAND & ELLIS LLP 6 555 California Street San Francisco, California 94104 7 Telephone: (415) 439-1400 Facsimile: (415) 439-1500 8 brandon.brown@kirkland.com 9 Attorneys for Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. 10 Dated: February 14, 2018 SIMPSON THACHER & BARTLETT LLP 11 By: /s/ Harrison J. Frahn 12 Harrison J. Frahn IV (CA Bar No. 206822) 13 SIMPSON THACHER & BARTLETT LLP 2475 Hanover Street 14 Palo Alto, California 94304 Telephone: (650) 251-5000 15 Facsimile: (650) 251-5002 hfrahn@stblaw.com 16 17 Attorneys for Apple Inc. 18 19 20 21 22 23 24 25 26 27 28 Case No. 4:15-CV-03755-HSG 30 JOINT CASE MANAGEMENT STATEMENT 31 17