eBay Inc. et al v. PartsRiver, Inc.

Filing 131

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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 EBAY INC.; and MICROSOFT CORPORATION, Plaintiffs, 6 7 8 v. KELORA SYSTEMS, LLC, Defendant. 9 United States District Court For the Northern District of California 10 No. C 10-4947 CW ________________________________/ 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) 11 12 CABELA’S INC., Plaintiff, 13 14 15 v. KELORA SYSTEMS, LLC, Defendant. 16 17 18 ________________________________/ KELORA SYSTEMS, LLC, 21 22 23 24 25 26 27 28 No. C 11-1548 CW Plaintiff, 19 20 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. ________________________________/ AND ALL RELATED COUNTERCLAIMS / 1 Defendant/Counterclaim-Plaintiff and Plaintiff/Counter-claim 2 Defendant Kelora Systems, LLC has filed a motion to strike from 3 consideration the AMP Navigator prior art reference utilized by 4 Plaintiffs and Counterclaim-Defendants eBay, Inc., Microsoft 5 Corporation, Cabela’s Inc. and Nebraska Furniture Mart, Inc., 6 Defendants and Counterclaim-Plaintiffs Target Corporation, Rockler 7 Companies, Inc., Amazon.com, Inc., Dell, Inc., Office Depot, Inc., 8 Newegg, Inc., Costco Wholesale Corporation, Hewlett-Packard 9 Company, Audible, Inc. and Zappos.com, Inc. (collectively, United States District Court For the Northern District of California 10 Defendants) in connection with Defendants’ arguments of 11 non-infringement and invalidity of Kelora’s U.S. Patent No. 12 6,275,821 (’821 patent) due to obviousness and broadening during 13 re-examination. 14 time on its motion to strike. Kelora has concurrently filed a motion to shorten 15 As the basis for striking the AMP Navigator prior art 16 reference, Kelora argues that Defendants changed their position 17 regarding the AMP Navigator program in their supplemental reply 18 filed on January 25, 2012. 19 Defendants stated for the first time in their supplemental reply 20 that the source code of the AMP Navigator software was not itself 21 the subject of the prior offer for sale previously addressed by 22 this Court and that this purported concession means that any 23 references to the AMP Navigator program should be stricken. 24 Kelora acknowledges that its motion to strike is untimely, see 25 Mot. to Strike at ii, and argues that it should be permitted to 26 raise this argument now because Defendants have only recently 27 reversed their position regarding the AMP Navigator program. Specifically, Kelora alleges that 28 2 1 However, Kelora misstates the contents of Defendants’ earlier filings. 3 e.g., Defs.’ First Reply in Supp. of Defs.’ Mot. for Summ. J. at 4 11 (“But the AMP Navigator offer for sale placed the general 5 concept claimed in original claim 1 in the prior art; the demo 6 software was merely described as ‘a demo of this approach,’ . . . 7 and none of the asserted claims are limited to any specific code 8 for implementing the invention.”) (emphasis in original); Defs.’ 9 Suppl. Mot. for Summ. J. at 9 (“Danish’s offer for sale under 10 United States District Court For the Northern District of California 2 § 102(b) did not place the source code in the prior art, but 11 rather ‘place[d] the claimed features . . . in the public’s 12 possession.’”). 13 Kelora’s reliance “on the specific source code of the AMP 14 Navigator demo,” at issue in Kelora’s instant motion, see, e.g., 15 Defs.’ Suppl. Mot. for Summ. J. at 9, and Kelora has already 16 responded to this argument, see Kelora’s Suppl. Opp. to Defs.’ 17 Suppl. Mot. for Summ. J. at 3. 18 disputed Kelora’s characterization of the AMP Navigator prior art 19 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 20 Accordingly, the Court finds that Kelora’s arguments to 21 strike the AMP Navigator prior art reference and to permit Kelora 22 to make this untimely filing are not well-taken. 23 that Kelora seeks to utilize its new motion as a means to file a 24 sur-reply to Defendants’ motion for summary judgment, the Court 25 finds that Kelora has had the opportunity to make these arguments 26 at earlier times and has not provided a reason for the Court to 27 allow it to do so at this late point. 28 3 To the extent 1 For the reasons stated above, the Court DENIES Kelora’s 2 motion to strike and Kelora’s motion to shorten time to hear the 3 motion to strike (Docket Nos. 129 and 130 in 10-4947, 107 and 108 4 in 11-1398, and 451 and 452 in 11-1548). 5 IT IS SO ORDERED. 6 7 8 Dated: 1/31/2012 CLAUDIA WILKEN United States District Judge 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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