eBay Inc. et al v. PartsRiver, Inc.
Filing
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ORDER by Judge Claudia Wilken denying (129) Motion to Strike ; denying (130) Motion to Shorten Time in case 4:10-cv-04947-CW; denying (451) Motion to Strike ; denying (452) Motion to Shorten Time in case 4:11-cv-01548-CW; denying (107) Motion to Strike ; denying (108) Motion to Shorten Time in case 4:11-cv-01398-CW. (ndr, COURT STAFF) (Filed on 1/31/2012)
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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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No. C 10-4947 CW
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ORDER DENYING
KELORA’S MOTION TO
STRIKE AND MOTION
TO SHORTEN TIME ON
MOTION TO STRIKE
(Docket Nos. 129
and 130 in
10-4947, 107 and
108 in 11-1398,
and 451 and 452 in
11-1548)
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CABELA’S INC.,
Plaintiff,
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v.
KELORA SYSTEMS, LLC,
Defendant.
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________________________________/
KELORA SYSTEMS, LLC,
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No. C 11-1548 CW
Plaintiff,
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No. C 11-1398 CW
v.
TARGET CORPORATION; ROCKLER
COMPANIES, INC.; AMAZON.COM,
INC.; DELL, INC.; OFFICE DEPOT,
INC.; NEWEGG INC.; COSTCO
WHOLESALE CORPORATION; HEWLETTPACKARD COMPANY; AUDIBLE, INC.;
and ZAPPOS.COM, INC.,
Defendants.
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AND ALL RELATED COUNTERCLAIMS
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Defendant/Counterclaim-Plaintiff and Plaintiff/Counter-claim
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Defendant Kelora Systems, LLC has filed a motion to strike from
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consideration the AMP Navigator prior art reference utilized by
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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, Rockler
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Companies, Inc., Amazon.com, Inc., Dell, Inc., Office Depot, Inc.,
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Newegg, Inc., Costco Wholesale Corporation, Hewlett-Packard
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Company, Audible, Inc. and Zappos.com, Inc. (collectively,
United States District Court
For the Northern District of California
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Defendants) in connection with Defendants’ arguments of
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non-infringement and invalidity of Kelora’s U.S. Patent No.
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6,275,821 (’821 patent) due to obviousness and broadening during
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re-examination.
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time on its motion to strike.
Kelora has concurrently filed a motion to shorten
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As the basis for striking the AMP Navigator prior art
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reference, Kelora argues that Defendants changed their position
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regarding the AMP Navigator program in their supplemental reply
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filed on January 25, 2012.
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Defendants stated for the first time in their supplemental reply
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that the source code of the AMP Navigator software was not itself
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the subject of the prior offer for sale previously addressed by
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this Court and that this purported concession means that any
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references to the AMP Navigator program should be stricken.
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Kelora acknowledges that its motion to strike is untimely, see
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Mot. to Strike at ii, and argues that it should be permitted to
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raise this argument now because Defendants have only recently
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reversed their position regarding the AMP Navigator program.
Specifically, Kelora alleges that
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However, Kelora misstates the contents of Defendants’ earlier
filings.
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e.g., Defs.’ First Reply in Supp. of Defs.’ Mot. for Summ. J. at
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concept claimed in original claim 1 in the prior art; the demo
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software was merely described as ‘a demo of this approach,’ . . .
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and none of the asserted claims are limited to any specific code
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for implementing the invention.”) (emphasis in original); Defs.’
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Suppl. Mot. for Summ. J. at 9 (“Danish’s offer for sale under
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United States District Court
For the Northern District of California
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§ 102(b) did not place the source code in the prior art, but
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rather ‘place[d] the claimed features . . . in the public’s
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possession.’”).
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Kelora’s reliance “on the specific source code of the AMP
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Navigator demo,” at issue in Kelora’s instant motion, see, e.g.,
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Defs.’ Suppl. Mot. for Summ. J. at 9, and Kelora has already
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responded to this argument, see Kelora’s Suppl. Opp. to Defs.’
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Suppl. Mot. for Summ. J. at 3.
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disputed Kelora’s characterization of the AMP Navigator prior art
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and have not made the late reversal that Kelora purports.
Defendants have repeatedly made this argument.
See,
Defendants have previously argued against
Defendants have consistently
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Accordingly, the Court finds that Kelora’s arguments to
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strike the AMP Navigator prior art reference and to permit Kelora
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to make this untimely filing are not well-taken.
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that Kelora seeks to utilize its new motion as a means to file a
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sur-reply to Defendants’ motion for summary judgment, the Court
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finds that Kelora has had the opportunity to make these arguments
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at earlier times and has not provided a reason for the Court to
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allow it to do so at this late point.
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To the extent
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For the reasons stated above, the Court DENIES Kelora’s
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motion to strike and Kelora’s motion to shorten time to hear the
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motion to strike (Docket Nos. 129 and 130 in 10-4947, 107 and 108
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in 11-1398, and 451 and 452 in 11-1548).
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IT IS SO ORDERED.
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Dated: 1/31/2012
CLAUDIA WILKEN
United States District Judge
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United States District Court
For the Northern District of California
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