SIMPSON THACHER & BARTLETT LLP 425 LEXINGTON AVENUE NEW YORK, NY 10017-3954 (212) 455-2000 FACSIMILE (212) 455-2502 DIRECT DIAL NUMBER E-MAIL ADDRESS (212) 455-2577 email@example.com VIA ECF AND EMAIL (firstname.lastname@example.org) November 7, 2014 Re: IXI Mobile (R&D) Ltd. et al. v. Apple Inc., 14-cv-7954 (RJS) (DCF) Honorable Richard J. Sullivan United States District Judge Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Dear Judge Sullivan: I am lead trial counsel for Apple Inc. ("Apple") and write regarding the proposed scheduling orders filed today by the parties in IXI Mobile (R&D) Ltd. et al. v. Blackberry Ltd., 14-cv-4428 (RJS) (DCF) (the "Blackberry Litigation") and IXI Mobile (R&D) Ltd. et al. v. Samsung Electronics Co., Ltd., 14-cv-4355 (RJS) (DCF) (the "Samsung Litigation"). On October 8, 2014, Your Honor ordered IXI, Samsung, and Blackberry to coordinate with Apple's counsel before submitting a revised proposed scheduling order in their cases. Although Apple was not directed to make a filing along with IXI, Blackberry, and Samsung,1 and because Apple's position was not fully reflected in those filings, Apple submits this letter so that its position may considered. Apple's proposed alterations to the schedule, as described in the filings in the Blackberry and Samsung Litigations, would allow the case in IXI v. Apple to proceed in tandem with the Blackberry and Samsung Litigations. IXI's competing proposal, however, is not revised in any material way to account for its suit against Apple. Over the last three weeks, Apple tried to reach agreement with IXI, working through numerous meet and confer calls and exchanges of dozens of drafts and emails, but IXI was unwilling to compromise on critical dates, as discussed below. 1 Although IXI invited Apple to join the filings in the Blackberry and Samsung Litigations, those filings contain representations that would have been premature for Apple as Apple has not even responded to IXI's Complaint. BEIJING HONG KONG HOUSTON LONDON LOS ANGELES PALO ALTO S ÃO P A U L O SEOUL TOKYO WASHINGTON, D.C. SIMPSON THACHER & BARTLETT LLP Honorable Richard J. Sullivan -2- November 7, 2014 IXI sued Apple just over a month ago, on October 2, 2014. That was three and one-half months after IXI sued Blackberry and Samsung. Notwithstanding its decision to sue Apple later, IXI proposes to put Apple on an inordinately accelerated schedule. This is unfair in the extreme to Apple. Among the inequities: IXI would serve Apple with discovery immediately, weeks before its response to the complaint is due, and long before initial disclosures would typically be exchanged; IXI would cut short Apple's time to review prior art for its invalidity contentions; and IXI would force Apple into a telescoped schedule for claim construction, which is usually the most important event in a patent case before trial. Balanced against those and other prejudices is the sole justification that IXI has offered: that it should not be prejudiced by any delay and that Apple's concerns are overblown. This, of course, is no justification at all, when the timing was entirely of IXI's choice. A consistent schedule across the Blackberry, Samsung, and Apple Litigations is necessary to prevent conflicting dates for significant events, such as invalidity contentions, claim construction, and summary judgment, and to avoid potentially inconsistent rulings on the likely common issues of claim construction and summary judgment. The schedule proposed by Apple, and supported by the Blackberry and Samsung defendants, achieves these goals and treats Apple fairly.2 That proposal takes the same schedule that was previously agreed to by IXI, and shifts it by 90 days to account for IXI's own 105-day delay in suing Apple. Adopting the schedule proposed by Apple and supported by Blackberry and Samsung does not derail these cases; in fact, that schedule would have these cases ready for trial quicker than the average time to trial for patent cases in this District and nationwide. A recent study by Pricewaterhouse Coopers found that the average time to trial for patent cases over the last four years was nearly two years and nine months. See 2014 Patent Litigation Study, Pricewaterhouse Coopers LLP, at 16, available at http://www.pwc.com/en_US/us/forensic-services/publications/assets/2014-patent-litigation- study.pdf. For this District, the average time to trial is longer, at nearly two years and eleven months. Id. at 17. Apple's proposed schedule has these cases ready for trial by mid to late 2016, depending on the timing of the claim construction order; thus, that schedule would be faster than the average times to trial both nationally and in this District. Finally, to the extent that IXI wants to proceed immediately with discovery against Blackberry and Samsung, Apple would have no reason to object, provided that the parties follow the dates proposed by Apple and supported by Blackberry and Samsung for significant events like invalidity contentions and claim construction, and discovery against Apple does not begin before Apple serves its initial disclosures. 2 The proposed schedule assumes that all defendants remain in this District; Apple is evaluating whether it should seek transfer, given this case's lack of connection to this District. SIMPSON THACHER & BARTLETT LLP Honorable Richard J. Sullivan -3- November 7, 2014 Therefore, in an effort to streamline the cases, to preserve judicial efficiency, and to allow a meaningful opportunity for Apple to defend itself against IXI's Complaint, Apple respectfully requests that the Court enter an Order in all three related litigations that adopts the schedule proposed by Apple. As reflected in the filings in their own cases, Blackberry and Samsung support this request. Respectfully submitted, /s/ Harrison J. Frahn IV Harrison J. Frahn IV cc: Thomas Steven Biemer, Esq. Gregory A. Blue, Esq. Joshua D. Wolson, Esq. John J. Higson, Esq. Marshall Beil, Esq. Jason W. Cook, Esq. Brian C. Riopelle, Esq. Derek H. Swanson, Esq. Gregory S. Arovas, Esq. Todd M. Friedman, Esq. James E. Marina, Esq. Mark W. Halderman, Esq. David Rokach, Esq.