Microsoft Corporation v. TiVo, Inc.

Filing 36

STIPULATION AND ORDER FOR MODIFICATION OF THE COURT'S CASE MANAGEMENT ORDER. Further Case Management Conference set for 6/23/2011 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Claims Construction Hearing set for 5/18/2011 10:00 AM. Tutorial Hearing set for 5/11/2011 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Signed by Judge Richard Seeborg on 6/25/10. (cl, COURT STAFF) (Filed on 6/25/2010)

*E-Filed 6/25/10* 1 Chad S. Campbell

Perkins Coie Brown &Bain P.A. 2 2901 North Central Avenue Suite 2000 3 Phoenix, AZ 85012-2755 602-351-8000 4 Fax: [phone] Email: [e-mail]
5 6 Perkins Coie LLP 7 Suite 1700

Lauren Sliger

1888 Century Park East

Morgan Chu (SBN 70446) Perry Goldberg (SBN 168976) Samuel Lu (SBN 171969) IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] E-mail: [e-mail] E-mail: [e-mail] Attorneys for Defendant TIVO INC.

Los Angeles, CA 90067-1721 8 310-788-9900 Fax: [phone] Email: [e-mail]
10 Farschad Farzan 11 Perkins Coie LLP 12 Suite 2400

Christopher Kao

Four Embarcadero Center San Francisco, CA 94111

13 415-344-7000

14 Email: [e-mail] 15

Fax: [phone]

Email: [e-mail] Attorneys for Plaintiff

16 MICROSOFT CORPORATION 17 18 19 20 21 22 23 24 25 26 27 28
JOINT STIPULATION FOR A MODIFICATION OF THE COURT'S SCHEDULING ORDER Case No. 5:10-CV-00240-RS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MICROSOFT CORPORATION, Plaintiff v. TIVO INC., Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 5:10-cv-00240-RS

JOINT STIPULATION FOR A MODIFICATION OF THE COURT'S CASE MANAGEMENT SCHEDULING ORDER

1 I. 2 3 4 5 6

INTRODUCTION Pursuant to Civil Local Rules 6-1, 6-2, and 7-12, the undersigned counsel hereby jointly

request an order changing time that would affect the dates of certain claim construction events set forth in the Court's Case Management Scheduling Order. In addition, pursuant to Civil Local Rule 7-12, the undersigned counsel jointly request a modification of certain discovery limitations set

7 forth in the Court's Case Management Scheduling Order. 8 II. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
JOINT STIPULATION FOR A MODIFICATION OF THE COURT'S SCHEDULING ORDER Case No. 5:10-CV-00240-RS

CLAIM CONSTRUCTION SCHEDULING A. Reasons for the Requested Enlargement

Pursuant to Civil Local Rule 6-2(a)(1), the reasons for the requested enlargement of time are as follows. · This case presently involves two patents asserted by Microsoft against TiVo. Dkt. No. 1. · On May 27, 2010, Microsoft served TiVo with its asserted claims and infringement contentions for the original two patents as specified in the Case Management Scheduling Order. Dkt No. 23. · On May 31, 2010, Microsoft filed a motion to amend seeking to assert five additional patents against TiVo. Dkt. No. 27. One week later, on June 7, 2010, Microsoft served TiVo with its asserted claims and infringement contentions for the five additional patents. · TiVo filed a statement of non-opposition in which TiVo offered not to oppose Microsoft's motion to amend so long as appropriate adjustments were made to the existing Case Management Scheduling Order. Dkt. No. 32.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

·

The parties agreed, in principle, to extend the current claim construction deadlines by approximately three months, if the Court were to grant Microsoft's motion to amend. Dkt. No. 32.

·

Under the parties' proposed schedule, TiVo would have slightly over five months from when TiVo received notice of Microsoft's five additional patents (i.e., when Microsoft filed its motion to amend) in which to serve TiVo's invalidity contentions, which is approximately the same amount of time that TiVo would have to prepare invalidity contentions had Microsoft filed a separate case. (In SAP Aktiengesellschaft v. I2 Technologies, Inc., 250 F.R.D. 472, 475 (N.D. Cal. 2008), the court (1) granted plaintiff's opposed motion to amend to add a new patent to the case and (2) gave the defendant 189 days from the date of the plaintiff's motion to amend in which to serve the defendant's invalidity contentions.)

·

The parties have thus reached agreement regarding both Microsoft's motion to amend and TiVo's request to modify the claim construction schedule.

For the foregoing reasons, the parties' jointly requested enlargement of time is reasonable. B. Previous Time Modifications

Pursuant to Civil Local Rule 6-2(a)(2), the parties disclose that the only previous time

21 modification in this case was a joint stipulation giving TiVo a thirty-day extension of time to 22 answer, plead, or otherwise respond to Microsoft's complaint. 23 24 25 26 27 28
JOINT STIPULATION FOR A MODIFICATION OF THE COURT'S SCHEDULING ORDER Case No. 5:10-CV-00240-RS

C.

Effect the Requested Modification Would Have on the Schedule

Pursuant to Civil Local Rule 6-2(a)(3), the parties submit the following proposal for a modified claim construction schedule. The proposal describes the effect that the requested modification would have on the current claim construction schedule:

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

Claim Construction Event Invalidity Contentions Exchange Proposed Terms for Construction Exchange Preliminary Claim Constructions and Extrinsic Evidence Joint Claim Construction and Expert Reports Motion to Amend the Pleadings Completion of Claim Construction Discovery Opening Claim Construction Brief Responsive Claim Construction Brief Reply Claim Construction Brief Tutorial Claim Construction Hearing Further Case Management Conference

Current Date July 26, 2010 August 9, 2010 August 30, 2010

Proposed Date November 4, 2010 November 18, 2010 December 9, 2011

September 24, 2010 October 1, 2010 October 22, 2010 November 8, 2010 November 22, 2010 December 1, 2010 January 26, 2011 February 2, 2011 March 3, 2011

January 6, 2011 January 13, 2011 February 3, 2011 February 17, 2011 March 3, 2011 March 10, 2011 1 week before Claim Construction Hearing Early May 2011 1 month after Claim Construction Hearing

DISCOVERY LIMITATIONS

The Court ordered the following relevant discovery limitations in the Case Management

25 Scheduling Order: 26 27 28
JOINT STIPULATION FOR A MODIFICATION OF THE COURT'S SCHEDULING ORDER Case No. 5:10-CV-00240-RS

(a) fifteen (15) non-expert depositions per party, including depositions contemplated by Fed. R. Civ. P. 30(b)(6);

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1 2 3 4 5 6 7 8 9 10 11 12 13 14

(d) fifty requests for admission per party (exclusive of requests for admission seeking document identification). If the Court were to grant Microsoft's motion to amend, the parties would agree to a proposed modification of these discovery limitations as follows: (a)(1) twenty-three (23) non-expert depositions per party, including depositions contemplated by Fed. R. Civ. P. 30(b)(6), with both parties having the right to seek leave of court for additional depositions if necessary; (a)(2) Joseph H. Matthews, III (one of the inventor-witnesses named on four different patents) may be deposed for up to ten (10) hours; (d) seventy requests for admission per party (exclusive of requests for admission seeking document identification). The proposed discovery limitations are reasonable and appropriate given that, if

15 Microsoft's motion to amend were granted, the number of patents in this case would increase from 16 two to seven patents and the number of possible inventor-witnesses would increase from five to 17 thirteen possible inventor-witnesses. 18 19 20 21 IV. STIPULATION

THE PARTIES HEREBY STIPULATE, by and through their respective counsel, and respectfully request that the Court modify the Court's Case Management Scheduling Order as

22 follows: 23 24 25 26 27 28
JOINT STIPULATION FOR A MODIFICATION OF THE COURT'S SCHEDULING ORDER Case No. 5:10-CV-00240-RS

1.

CLAIM CONSTRUCTION SCHEDULING Claim Construction Event New Date November 4, 2010 November 18, 2010

Invalidity Contentions Exchange Proposed Terms for Construction

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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

Exchange Preliminary Claim Constructions and Extrinsic Evidence Joint Claim Construction and Expert Reports Motion to Amend the Pleadings Completion of Claim Construction Discovery Opening Claim Construction Brief Responsive Claim Construction Brief Reply Claim Construction Brief Tutorial Claim Construction Hearing Further Case Management Conference

December 9, 2011 January 6, 2011 January 13, 2011 February 3, 2011 February 17, 2011 March 3, 2011 March 10, 2011 1 week before Claim Construction Hearing May 11, 2011 at 10:00 a.m. Early May 2011 May 18, 2011 at 10:00 a.m. 1 month after Claim Construction Hearing June 23, 2011 at 10:00 a.m.

2.

DISCOVERY

Discovery limitations shall be modified as follows: (a)(1) twenty-three (23) non-expert depositions per party, including depositions contemplated by Fed. R. Civ. P. 30(b)(6), with both parties having the right to seek leave of court for additional depositions if necessary; (a)(2) Joseph H. Matthews, III (one of the inventor-witnesses named on four different patents) may be deposed for up to ten (10) hours; (d) seventy requests for admission per party (exclusive of requests for admission seeking document identification). All other discovery limitations shall remain the same.

JOINT STIPULATION FOR A MODIFICATION OF THE COURT'S SCHEDULING ORDER Case No. 5:10-CV-00240-RS

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1 2 Dated: June 24, 2010 3 IRELL & MANELLA LLP 4 Attorneys for Defendant TiVo Inc. 5 By: /s/ Samuel K. Lu Samuel K. Lu 6 7 PERKINS COIE LLP Attorneys for Plaintiff 8 Microsoft Corporation 9 By: /s/ Lauren Sliger Lauren Sliger 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
JOINT STIPULATION FOR A MODIFICATION OF THE COURT'S SCHEDULING ORDER Case No. 5:10-CV-00240-RS

PURSUANT TO STIPULATION, IT IS SO ORDERED Date: 6/25/10 _________________________________ Hon. Richard Seeborg United States District Judge

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