Textscape, LLC v. Google, Inc.

Filing 43

CASE MANAGEMENT STATEMENT : Amended Joint Case Management Statement filed by Textscape, LLC. (Goldstein, Edward) (Filed on 2/22/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

MICHAEL E. DERGOSITS (State Bar No. 118206) TEDDY K. JOE (State Bar No. 242589) DERGOSITS & NOAH, L.L.P. Four Embarcadero Center, Suite 1450 San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Edward W. Goldstein Corby R. Vowell GOLDSTEIN, FAUCETT & PREBEG, LLP 1177 West Loop South, Suite 400 Houston, TX 77027 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Email: [e-mail] Attorneys for Textscape LLC IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA TEXTSCAPE LLC, Plaintiff, v. GOOGLE INC., § § § § § § § § §

Civil Action No.: 5:09-cv-04552 JF AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT AND 26(f) REPORT

Defendant.

AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT Pursuant to the Stipulation and Order Continuing Case Management Conference to March 12, 2010 (Dkt. 42), Plaintiff Textscape LLC ("Textscape" or "Plaintiff") and Defendant Google Inc. ("Google" or "Defendant") respectfully submit their Amended Joint Case Management Statement and Proposed Order as required under Fed.R.Civ.P.

1 AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. CV 09-4552 JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

26(f), Civil L.R. 16-9(a) and Patent L.R. 2-1(a) and request the Court to adopt it as its Case Management Order in this case. 1. Jurisdiction and Service The Court has subject matter jurisdiction in this patent infringement matter as it arises under the patent laws of the United States, Title 35 United States Code, particularly §§ 271 and 281 and Title 28 United States Code, particularly §1338(a). Venue is proper in this Court under Title 28 United States Code §§ 1391(b) and (c) and 1400(b). The sole Defendant Google has been properly served. 2. Facts Plaintiff Textscape alleges that Defendant Google infringes U.S. Patent No. 5,713,740 ("the `740 patent") titled "System and method for converting written text into a graphical image for improved comprehension by the learning disabled." Plaintiff alleges that Defendant has infringed at least claim 1of the `740 patent by providing software embodying the technology claimed in the `740 patent, including but not limited to its Google Chrome web browser. Defendant Google asserts that its products and services do not infringe the `740 patent. Moreover, Google maintains that the asserted claims are invalid and/or

unenforceable, and that one or more prior art references anticipate and/or render obvious the asserted claims of the `740 patent. Furthermore, Google states that Textscape is not entitled to any damages or other relief. 3. Legal Issues Plaintiff and the Defendant agree that infringement, validity, and enforceability of the `740 patent will all be subjects of dispute. Plaintiff and Defendant also agree that

issues of claim construction and damages will be subjects of dispute. 4. Motions There are no motions pending at this time. Currently, Plaintiff does not anticipate any specific motions that it intends to file. Defendant does not anticipate any specific

2 AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. CV 09-4552 JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

motions that it intends to file at this time. However, Defendant does anticipate that Summary Judgment motions for non-infringement and/or invalidity may be appropriate once Plaintiff provides more specific allegations during the course of discovery. 5. Amendment of Pleadings Plaintiff does not anticipate filing any amended pleadings at this time. Defendant does not anticipate filing any amended pleadings at this time. The parties have agreed that any amended pleadings, without leave of Court, should be filed by July 2, 2010. 6. Evidence Preservation The parties have been advised not to destroy evidence relevant to the issues reasonably evident in this action, including putting a litigation hold on document destruction programs and electronic evidence. 7. Disclosures The parties have not yet exchanged initial disclosures under Rule 26, but have agreed to do so by March 22, 2010. 8. Discovery Pursuant to the Court's standing orders and Rule 26(f)(3), the parties state as follows: (A) The parties anticipate that the disclosures required under Fed.R.Civ.P

26(a) will be made on the dates indicated in the proposed schedule set forth herein. Initial disclosures will be served by the date specified above. (B) The parties have not taken any discovery to date.

Plaintiff states that it anticipates taking discovery related to Google's infringement of the `740 patent and the damages to which Plaintiff is entitled. Defendant states that it anticipates taking discovery related to invalidity and unenforceability of the `740 patent, ownership and licensing rights in the `740 patent, Plaintiff's allegations of infringement, and the damages claimed by Plaintiff.

3 AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. CV 09-4552 JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11. 10.

The parties anticipate that discovery will be completed at the date(s) indicated in the proposed schedule set forth herein. (C) The parties will work toward reaching agreement on the form and format

of their respective document productions. (D) The parties will work toward reaching agreement on issues of privilege

and the protection of confidential information, and anticipate submitting a proposed Protective Order to the Court. (E) The parties do not believe that any discovery limitations are warranted

beyond those set forth in the Federal Rules of Civil Procedure and the local civil and patent rules. (F) Subject to the foregoing, at this time, the parties are not aware of any other

order the Court should issue under Rule 26(c) or under Rule 16(b) and (c). 9. Class Actions This is not a class action case. Related Cases There are currently no pending cases related to this litigation. Relief In accordance with the patent laws, Textscape alleges it is entitled to at least a reasonable royalty for Defendant's infringement of the claimed invention ­ a claim that Defendant denies. Textscape alleges that a determination of a reasonable royalty cannot be made at this time because no sales data or royalty information has been provided by the Defendant. In addition, Textscape alleges that it is entitled to interest and costs as fixed by the Court and seeks attorneys fees under 35 U.S.C. § 285. Google seeks a judgment that the `740 patent is invalid, unenforceable, and not infringed by Google. Google further seeks a judgment denying Textscape any damages or other relief and awarding Google its reasonable costs and expenses of litigation, including attorneys' fees and expert witness fees.

4 AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. CV 09-4552 JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

12.

Settlement and ADR The parties have agreed to non-binding mediation as the appropriate ADR method

for this case. The parties have had settlement discussions, but have not yet resolved the matter. 13. Consent to Magstrate The parties have declined to consent to have a magistrate judge conduct any further proceedings in this matter. 14. Other References The parties do not believe that this case is suitable for reference to binding arbitration, a special master, or the Judicial Panel on Multidistrict Litigation. 15. Narrowing of Issues The parties do not anticipate at this time any particular issues that can be narrowed by agreement or motion. However, the parties will cooperate in discovery issues and motion practice in an effort to proceed efficiently to trial. 16. Expedited Schedule The parties do not believe that this case should have an expedited schedule, but have agreed on a schedule as set forth below. 17. Scheduling In accordance with the principles of the Northern District's Patent Local Rules, Textscape and Google have agreed to the following schedule: a. b. Parties to provide Initial Disclosures Patent Disclosures pursuant to Patent L.R. 3-1 and 3-2 (including Disclosure of Asserted Claims and Infringement Contentions) Patent Disclosures pursuant to Patent L.R. 3-3 and 3-4 (including Invalidity Contentions) March 22, 2010 March 26, 2010

c.

May 10, 2010

5 AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. CV 09-4552 JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

d.

Exchange of Proposed Terms and Claim Elements for Construction pursuant to Patent L.R. 4-1 Exchange of Preliminary Claim Constructions and Extrinsic Evidence pursuant to Patent L.R. 4-2 Deadline to amend pleadings and add additional parties without leave of Court Joint Claim Construction and Prehearing Statement pursuant to Patent L.R. 4-3, including submission of claim construction expert reports or declarations (other than rebuttal expert reports or declarations relating to claim construction) Submission of rebuttal expert reports or declarations relating to claim construction Completion of Claim Construction Discovery pursuant to Patent L.R. 4-4 Opening Claim Construction Brief pursuant to Patent L.R. 4-5(a) Responsive Claim Construction Brief pursuant to Patent L.R. 4-5(b) Reply Claim Construction Brief pursuant to Patent L.R. 4-5(c) Claim Construction Hearing Production of Opinions of Counsel pursuant to Patent L.R. 3-7 Deadline to Complete Fact Discovery Deadline for party with the burden of proof to submit expert reports Deadline for parties to submit responsive expert reports Deadline to complete expert discovery Deadline for parties to file dispositive

May 24, 2010

e.

June 14, 2010

f. g.

July 2, 2010 July 9, 2010

h. i. j. k. l. m. n. o. p. q. r. s.

July 23, 2010 August 9, 2010 August 23, 2010 September 7, 2010 September 13, 2010 October 2010 50 days after Claim Construction Ruling 90 days after Claim Construction Ruling 120 days after Claim Construction Ruling 150 days after Claim Construction Ruling 165 days after Claim Construction Ruling 180 days after Claim

6 AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. CV 09-4552 JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 topics: (1) time. 21. 19. 18. Trial t. u.

motions Pretrial Order Trial

Construction Ruling 30 days before trial __________ 2011

The trial will be a jury trial, and the parties estimate that 6 trial days should be sufficient. Disclosure of Non-party Interested Entities or Persons Plaintiff Textscape LLC filed its Certification of Interested Entities or Parties on February 5, 2010, certifying that there is no interest to report other than the named parties. Defendant Google Inc. filed a Certification of Interested Entities or Persons Pursuant to Civil L.R. 3-16 (Dkt. 20) on January 19, 2010, certifying that, other than the named parties and their shareholders, there is no interest to report under Civil Local Rule 3-16. 20. Other Matters There are no other matters that the parties believe need to be addressed at this

Patent L.R. 2-1(a) Pursuant to Patent L.R. 2-1(a), the parties additionally address the following

The parties do not propose any modification of the obligations or

deadlines set forth in the Patent Local Rules at this time, except to the extent modified by the proposed schedule above, and that the parties' agree to a timely, but rolling production of documents required by Patent L.R. 3-2 and 3-4, and as required under local and federal rules of discovery.

7 AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. CV 09-4552 JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(2)

As provided in the proposed schedule set forth herein, the parties agree

that the completion of claim construction discovery, including the disclosure of and discovery from any expert witness permitted by the court, will be on August 6, 2010. However: (a) Claim construction experts submitting an expert report or

declaration, or providing testimony at the Claim Construction Hearing, shall be made available for deposition after July 9, 2010; and (b) Claim construction experts submitting a rebuttal expert report or

declaration, or providing rebuttal testimony at the Claim Construction Hearing, shall be made available for deposition after July 23, 2010. (3) The parties have not yet determined if any live testimony will be necessary

at the Claim Construction Hearing, but expect the hearing to take no longer than 5 hours, wherein the parties anticipate that each disputed claim term or phrase will be addressed first by Plaintiff and then by Defendant, before moving on to the next disputed claim term or phrase. (4) The parties have not yet determined how the Court would be best educated

on the technology-at-issue, or whether any introduction is necessary. Preliminarily, the parties are considering the merits of (jointly or individually) submitting a tutorial to the Court before the Claim Construction Hearing, and/or presenting a brief tutorial (jointly or individually) at the Claim Construction Hearing.

Dated: February 22, 2010

Respectfully submitted, /s/ Edward W. Goldstein_______ Edward W. Goldstein Corby R. Vowell GOLDSTEIN, FAUCETT & PREBEG, L.L.P. 1177 West Loop South, Suite 400 Houston, Texas 77027

8 AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. CV 09-4552 JF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Telephone: [phone] Facimile: [phone] E-mail: [e-mail] [e-mail] ATTORNEYS FOR PLAINTIFF TEXTSCAPE LLC /s/ Geoffrey M. Ezgar_______ TIMOTHY T. SCOTT (SBN 126971) [e-mail] GEOFFREY M. EZGAR (SBN 184243) [e-mail] LEO SPOONER III (SBN 241541) [e-mail] KING & SPALDING LLP 333 Twin Dolphin Drive, Suite 400 Redwood Shores, CA 94065 Telephone: [phone] Facsimile: [phone] SCOTT T. WEINGAERTNER (pro hac vice) [e-mail] ROBERT F. PERRY [e-mail] CHRISTOPHER C. CARNAVAL (pro hac vice) [e-mail] MARK H. FRANCIS (pro hac vice) [e-mail] KING & SPALDING LLP 1185 Avenue of the Americas New York, NY 10036-4003 Telephone: [phone] Facsimile: [phone] ATTORNEYS FOR DEFENDANT GOOGLE INC. CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system on February 22, 2010. Any other counsel of record will be served by first class U.S. mail. /s/ Edward W. Goldstein______ Edward W. Goldstein

9 AMENDED JOINT CASE MANAGEMENT CONFERENCE STATEMENT

CASE NO. CV 09-4552 JF