Looksmart Group, Inc. v. Microsoft Corporation

Filing 57

STIPULATION AND ORDER re 55 STIPULATION AND [PROPOSED] ORDER Granting the Parties' Request to Amend Contentions Pursuant to Patent L.R. 3-6 filed by Looksmart Group, Inc. Signed by Judge Jon S. Tigar on May 17, 2018. (wsn, COURT STAFF) (Filed on 5/17/2018)

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SPENCER HOSIE (CA Bar No. 101777)
[e-mail]
DIANE S. RICE (CA Bar No. 118303)
[e-mail]
LYNDSEY C. HEATON (CA Bar No. 262883)
[e-mail]
DARRELL R. ATKINSON (CA Bar No. 280564)
[e-mail]
HOSIE RICE LLP
600 Montgomery Street, 34th Floor
San Francisco, CA 94111
[phone] Tel.
[phone] Fax
Attorneys for Plaintiff LookSmart Group, Inc.

JUANITA R. BROOKS (CA Bar No. 75934)
[e-mail]
JASON W. WOLFF (CA Bar No. 215819)
[e-mail]
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
[phone] Tel.
[phone] Fax
Attorneys for Defendant Microsoft Corp.

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Additional attorneys listed on signature page.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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LOOKSMART GROUP, INC.,

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Plaintiff,

Case No. 3:17-cv-4709-JST

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vs.

STIPULATION
AND
[PROPOSED]
ORDER GRANTING THE PARTIES’
REQUEST TO AMEND CONTENTIONS
PURSUANT TO PATENT L.R. 3-6

MICROSOFT CORPORATION,
Defendant.

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DEMAND FOR JURY TRIAL
Pursuant to Local Rules 7-1(a)(5) and 7-12, and Patent Local Rule 3-6, Plaintiff
Looksmart Group, Inc. (“Looksmart”) and Defendant Microsoft Corporation (“Microsoft”)
hereby agree and stipulate as follows:
WHEREAS, LookSmart served its Patent L.R. 3-1 Infringement Contentions on February

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14, 2018 and Microsoft served its Patent L.R. 3-3 Invalidity Contentions on April 2, 2018

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pursuant to the Court’s Scheduling Order (ECF No. 45);

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WHEREAS, on May 4, 2018, LookSmart notified Microsoft of its intent to seek the

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Court’s leave to amend its Infringement Contentions and concurrently provided Microsoft with a

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copy of its proposed Amended Infringement Contentions and a draft motion for leave to amend;
STIPULATED REQUEST FOR ORDER TO
AMEND CONTENTIONS

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Case No. 3:17-cv-4709-JST

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WHEREAS, Microsoft does not oppose LookSmart’s request to amend its Infringement

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Contentions in the manner represented in LookSmart’s May 4, 2018 correspondence, and

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LookSmart does not oppose Microsoft’s request to amend its Invalidity Contentions so long as

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Microsoft does so on or before June 1, 2018 and its amendments are commensurate in scope with

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LookSmart’s amendments;

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WHEREAS, LookSmart respectfully submits that good cause exists to amend its
Infringement Contentions pursuant to Patent L.R. 3-6 because:
(a) LookSmart’s amended contentions rely on information ascertained from Microsoft’s
non-public, confidential and proprietary information, which was not known to
Looksmart prior to Microsoft’s production, and LookSmart diligently reviewed such
information;

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(b) LookSmart’s proposed amendments will not unduly prejudice Microsoft due to the
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relatively early stage of the case and because they do not assert any new patent
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claims;
(c) LookSmart acted diligently in seeking this amendment since none of these above
bases for amendment were previously available to LookSmart outside the confidential
discovery and disclosure mechanisms of this case;
(d) LookSmart agrees that in its original theory, it found no evidence that a “dynamic
rank” value was stored in the “merged indices” for the Accused Products, though it
has requested additional information to determine whether a different rank value (e.g.,
“sort rank”) is;
(e) However, LookSmart contends in its amended infringement contentions that the
“dynamic rank” value is stored in a “query cache” used with the accused product, and
that this is LookSmart’s primary infringement theory subject to its remaining
questions on the rank values stored in the “merged indices.”
WHEREAS, Microsoft respectfully submits that good cause exists to amend its Invalidity
Contentions pursuant to Patent L.R. 3-6 because:

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STIPULATED REQUEST FOR ORDER TO
AMEND CONTENTIONS

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Case No. 3:17-cv-4709-JST

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(a) Microsoft contends that the change in the infringement theories between LookSmart’s

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initial Patent L.R. infringement charts and its amended “query caching” theory

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present LookSmart’s application of certain claim terms in a new light, which

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Microsoft did not appreciate when Microsoft prepared its responsive Patent L.R. 3-3

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invalidity contentions;

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(b) In view of LookSmart’s amended infringement contentions, Microsoft is performing
an additional search for prior art to address these changes provided on May 4, 2018;
(c) Microsoft’s responsive charts will be diligently served less than 30 days after
Looksmart first provided its proposed its amended Patent L.R. infringement charts;
(d) Looksmart will not be unduly prejudiced by supplementation of Microsoft’s Patent
L.R. invalidity contentions because it is relatively early in the case, and the existing

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Patent L.R.’s already reflect a response to defend against a claim of infringement.
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WHEREAS, LookSmart and Microsoft have agreed that, to avoid burdening the Court,

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the parties will stipulate to allow amendments to their respective Infringement and Invalidity

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Contentions, subject to the Court’s approval.

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IT IS HEREBY STIPULATED AND AGREED, by and between LookSmart and
Microsoft, subject to the Court’s approval, that:
(a) LookSmart is hereby given leave to amend its Patent L.R. 3-1 infringement
contentions in the manner set forth in LookSmart’s May 4, 2018 correspondence; and

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(b) Microsoft is hereby given leave to amend its Patent L.R. 3-3 invalidity contentions on

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or before June 1, 2018 in a manner that is commensurate in scope with LookSmart’s

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amendments.

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STIPULATED REQUEST FOR ORDER TO
AMEND CONTENTIONS

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Case No. 3:17-cv-4709-JST

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Dated: May 15, 2018

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Respectfully submitted,

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/s/ Eric J. Enger

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SPENCER HOSIE (CA Bar No. 101777)
[e-mail]
DIANE S. RICE (CA Bar No. 118303)
[e-mail]
LYNDSEY C. HEATON (CA Bar No. 262883)
[e-mail]
DARRELL R. ATKINSON (CA Bar No.
280564)
[e-mail]
HOSIE RICE LLP
600 Montgomery Street, 34th Floor San
Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]

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_

/s/ Jason W. Wolff (by permission)
Juanita R. Brooks (SBN 75934 /
[e-mail])
Jason W. Wolff (SBN 215819 / [e-mail])
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, CA 92130
Telephone: [phone]
Facsimile: [phone]
Betty H. Chen (SBN 290588 / [e-mail])
Andrew M. Goldberg (SBN 307254 /
[e-mail])
FISH & RICHARDSON P.C.
500 Arguello Street, Suite 500
Redwood City, California 94063
Telephone: [phone]
Facsimile: [phone]

Leslie V. Payne
TX State Bar No. 00784736 (pro hac vice)
[e-mail]
Eric J. Enger
TX State Bar No. 24045833 (pro hac vice)
[e-mail]
R. Allan Bullwinkel
TX State Bar No. 24064327 (pro hac vice)
[e-mail]
HEIM, PAYNE & CHORUSH, LLP
1111 Bagby St. Ste. 2100
Houston, Texas 77002
Telephone: [phone]
Facsimile: [phone]

ATTORNEYS
FOR
CORPORATION

MICROSOFT

Derek Gilliland
TX State Bar No. 24007239 (pro hac vice)
[e-mail]
NIX PATTERSON & ROACH, L.L.P.
205 Linda Drive
Daingerfield, TX 75638
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS
GROUP, INC.

FOR

LOOKSMART

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STIPULATED REQUEST FOR ORDER
CHANGING TIME

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Case No. 3:17-cv-4709-JST

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[PROPOSED] ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED that the Parties’ request to

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amend their contentions is GRANTED. LookSmart is hereby ordered to serve a copy of its

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Amended Infringement Contentions on counsel for Microsoft within two days of this Order.

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Microsoft is hereby ordered to serve a copy of its Amended Invalidity Contentions on counsel

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for LookSmart on or before June 1, 2018.

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Dated: May 17, 2018

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By: ______________________________
Judge Jon S. Tigar
UNITED STATES DISTRICT COURT

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PROPOSED ORDER

Case No. 3:17-cv-4709-JST