eBay Inc. et al v. PartsRiver, Inc.

Filing 120

ORDER DENYING IN PART DEFENDANTS (94 in 4:10-cv-04947-CW),, (57 in 4:11-cv-01398-CW), (361 in 4:11-cv-01548-CW), (70 in 4:11-cv-02284-CW) MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE AND SETTING DISCOVERY AND BRIEFING SCHEDULE FOR RENEWED MOTION FOR SUMMARY JUDGMENT. Supplemental brief due by 1/13/2012. Responses due by 1/20/2012. Replies due by 1/25/2012. Signed by Judge Claudia Wilken on 12/6/2011. (ndr, COURT STAFF) (Filed on 12/6/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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EBAY INC.; and MICROSOFT
CORPORATION,
Plaintiffs,

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v.
KELORA SYSTEMS, LLC,
Defendant.

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United States District Court
For the Northern District of California

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________________________________/
CABELA’S INC.,

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v.
KELORA SYSTEMS, LLC,
Defendant.

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________________________________/
KELORA SYSTEMS, LLC,
Plaintiff,

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No. C 11-1398 CW

Plaintiff,

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No. C 10-4947 CW

v.
TARGET CORPORATION; OFFICEMAX
INCORPORATED; ROCKLER COMPANIES,
INC.; 1-800-FLOWERS.COM, INC.;
AMAZON.COM, INC.; DELL, INC.;
OFFICE DEPOT, INC.; NEWEGG INC.;
COSTCO WHOLESALE CORPORATION;
HEWLETT-PACKARD COMPANY;
CIRCUITCITY.COM INC; AUDIBLE,
INC.; and ZAPPOS.COM, INC.,
Defendants.
________________________________/

No. C 11-1548 CW

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NEBRASKA FURNITURE MART, INC.,

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Plaintiff,

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No. C 11-2284 CW
ORDER DENYING IN
PART DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT WITHOUT
PREJUDICE AND
SETTING DISCOVERY
AND BRIEFING
SCHEDULE FOR
RENEWED MOTION FOR
SUMMARY JUDGMENT

v.

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KELORA SYSTEMS, LLC,

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Defendant.

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________________________________/

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AND ALL RELATED COUNTERCLAIMS
/

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United States District Court
For the Northern District of California

Plaintiffs and Counterclaim-Defendants eBay, Inc., Microsoft
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Corporation, Cabela’s Inc. and Nebraska Furniture Mart, Inc.,
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Defendants and Counterclaim-Plaintiffs Target Corporation, Office
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Max, Incorporated, Rockler Companies, Inc., 1-800-Flowers.com,
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Inc., Amazon.com, Inc., Dell, Inc., Office Depot, Inc., Newegg,
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Inc., Costco Wholesale Corporation, Hewlett-Packard Company,
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CircuitCity.com Inc., Audible, Inc. and Zappos.com, Inc.
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(collectively, Defendants) move for summary judgment on the claims
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filed against them by Defendant/Counterclaim-Plaintiff and
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Plaintiff/Counter-claim Defendant Kelora Systems, LLC (Kelora),
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based on arguments of non-infringement and invalidity of Kelora’s
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U.S. Patent No. 6,275,821 (’821 patent) due to obviousness and
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broadening during re-examination.
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Having considered the papers filed by the parties and their
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oral arguments, the Court DENIES without prejudice Defendants’
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motion for summary judgment to the extent that it argues that the
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’821 patent was invalid under 35 U.S.C. § 103 due to obviousness.
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While it is true that expert testimony is not always required

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for this inquiry, the Federal Circuit has also held that, in some

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circumstances, expert testimony may be essential to assist the

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Court in determining obviousness.

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616 F.3d 1231, 1239, 1239 n.5 (Fed. Cir. 2010) (“KSR and our later

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cases establish that the legal determination of obviousness may

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include recourse to logic, judgment, and common sense, in lieu of

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expert testimony,” though in some cases, expert testimony may be

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“essential”).

See Wyers v. Master Lock Co.,

The Court finds that, without the assistance of

United States District Court
For the Northern District of California

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expert testimony, Defendants have not met their burden to

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demonstrate that “resubmission” was obvious at the time of

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invention.

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Defendants are granted leave to supplement their motion for

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summary judgment.

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obviousness of “resubmission” and shall not repeat any other

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arguments or facts already provided in their original filings.

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The parties are limited to addressing the

The parties may refer to the exhibits submitted in connection

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with their prior filings.

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additional evidence beyond an expert declaration and supporting

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documents thereto, and Kelora may not submit additional evidence

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beyond a rebuttal expert declaration and supporting documents

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thereto, if Kelora desires to make such a submission.

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shall disclose the identity and report of their expert witness

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within fourteen days of the date of this order, and Kelora shall

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disclose its rebuttal expert report, if any, within one week

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thereafter.

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two weeks after the deadline for Kelora’s disclosure.

Defendants may not submit any

Defendants

The parties shall complete expert discovery within

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Defendants shall file their supplemental brief on their

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motion for summary judgment, which may not exceed ten pages, by

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January 13, 2012.

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renewed motion, if any, which may not exceed ten pages, by January

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20, 2012.

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opposition, if any, which may not exceed five pages, by January

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25, 2012.

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United States District Court
For the Northern District of California

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Kelora shall file its opposition to Defendants’

Defendants shall file their reply to Kelora’s

The Court will decide the renewed motion on the papers.

The remaining issues raised by Defendants in their motion for
summary judgment are under submission.
IT IS SO ORDERED.

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Dated: 12/6/2011

CLAUDIA WILKEN
United States District Judge

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