Sirius XM Radio Inc. v. Technology Properties Ltd et al

Filing 66

ORDER RELATING CASES. Signed by Judge Jeremy Fogel on 5/7/10. (dlm, COURT STAFF) (Filed on 5/25/2010)

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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 Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 John L. Cooper (State Bar No. 050324) jcooper@fbm.com Jeffrey M. Fisher (State Bar No. 155284) jfisher@fbm.com Eugene Y. Mar (State Bar No. 227071) emar@fbm.com Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4480 Attorneys for Defendants TECHNOLOGY PROPERTIES LIMITED and ALLIACENSE LIMITED (In Case Nos. 08-00877 JF; 08-00882 JF; 08-00884 JF; 08-05398 JF; & C10-00816 EDL) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ACER, INC., ACER AMERICA CORP., and GATEWAY, INC., Plaintiffs, vs. TECHNOLOGY PROPERTIES LIMITED, PATRIOT SCIENTIFIC CORPORATION, and ALLIACENSE LIMITED, Defendants. Case No. C 08 00877 JF JOINT CIVIL L.R. 3-12 ADMINISTRATIVE MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED AND REQUESTING ENTRY OF CASE SCHEDULE (Jointly Filed By Sirius XM Radio, Inc., plaintiff in Case No. C10-00816 EDL, and Technology Properties Limited, Patriot Scientific Corp., and Alliacense Limited, Defendants in Case Nos. 08-00877 JF; 0800882 JF; 08-00884 JF; 08-05398 JF; & C1000816 EDL) AND RELATED COUNTER-CLAIMS Pursuant to Civil Local Rule 3-12(b), Sirius XM Radio, Inc. ("Sirius XM") and Technology Properties Limited ("TPL"), Patriot Scientific Corporation ("Patriot") and Alliacense Limited ("Alliacense") (TPL, Patriot, and Alliacense collectively referred to herein as the "TPL Defendants"), jointly submit this Administrative Motion requesting that the fifth case listed below (Sirius XM Radio v. Technology Properties Limited et al.) be related to the first four cases listed TPL'S AND SIRIUS XM'S CIV. L.R. 3-12 ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED / Case No. C 08-00877 JF 23129\2188714.2 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 Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 below, all of which are or were pending in this district and had been previously related by this Court, and in all of which the TPL Defendants are parties: (1) Acer, Inc., Acer America Corp. and Gateway, Inc. v. Technology Properties Ltd., Patriot Scientific Corp. and Alliacense Ltd., Case No. 08-00877 JF (N.D. Cal., filed on February 8, 2008); (2) HTC Corporation and HTC America, Inc. v. Technology Properties Ltd., Patriot Scientific Corp. and Alliacense Ltd., Case No. 08-00882 JF (N.D. Cal., filed on February 8, 2008); (3) ASUSTeK Computer, Inc. and ASUS Computer Int'l v. Technology Properties Ltd., Patriot Scientific Corp., MCM Portfolio LLC and Alliacense Ltd., Case No. 08-00884 JF (N.D. Cal., filed on February 8, 2008); (4) Barco N.V. v. Technology Properties Ltd., Patriot Scientific Corp. and Alliacense Ltd., Case No. 08-05398 JF (N.D. Cal., filed on December 1, 2008); and (5) Sirius XM Radio, Inc. v. Technology Properties Ltd., Patriot Scientific Corp. and Alliacense Ltd., Case No. C10-00816 EDL (N.D. Cal., filed in S.D.N.Y. on April 24, 2009 and filed in the N.D. Cal. on February 26, 2010 after transfer). I. THE SIRIUS XM CASE SHOULD BE RELATED. In the Acer/Gateway Action, (number (1) above), Acer filed a motion to have its case considered to be related to the HTC and ASUSTeK cases (numbers (2) and (3) respectively). This Court granted that motion in a written Order dated April 29, 2008. Or. Granting Pl.'s Mot. To Consider Whether Cases Should be Related (April 29, 2008) [Docket No. 22]. Pursuant to that Order, the first three cases were assigned to Judge Fogel. The third action mentioned above, brought by ASUSTeK, has settled and is no longer pending. In the fourth action, Plaintiff Barco, N.V. brought an Administrative Motion filed to relate its case to the first three cases. On December 17, 2008, this Court granted Barco's request and related that action to the Acer, HTC, and Asustek actions. The Sirius XM Radio, Inc. v. Technology Properties Limited et al. action was filed in the Southern District of New York on April 24, 2009. The TPL Defendants moved to dismiss the TPL'S AND SIRIUS XM'S CIV. L.R. 3-12 ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED / Case No. C 08-00877 JF -2- 23129\2188714.2 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 Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 action for improper venue, or in the alternative, to transfer the action to the Northern District of California. Judge Buchwald of the Southern District of New York granted the motion to transfer venue pursuant to 28 U.S.C. 1404 on February 17, 2010, and the Sirius action was transferred to the Northern District of California. A true and correct copy of Judge Buchwald's Order is attached hereto as Exhibit A. Local Rule 3-12 provides that an action is related to another action pending in this district when "(1) [t]he actions concern substantially the same parties, property, transaction or event; and (2) [i]t appears likely that there will be an unduly burdensome duplication of labor and expense or conflicting results if the cases are conducted before different Judges." Both of these prongs are met here. The TPL Defendants are parties to all of the actions. The Acer and HTC actions share four of the same patents-in-suit (the `148, `749, `336, and `890 patents from the Moore microprocessor patent portfolio ["MMP"]) as the Sirius XM case. Similarly, the Barco action shares three of the same patents-in-suit, (`336, `749, and `890 patents) as the Sirius XM case. All of the pending actions seek a declaratory judgment of noninfringement and invalidity of the TPL Defendants' patents. Because of the overlapping parties, property, and issues common to all of the actions, judicial economy and efficiency would be achieved by having a single judge hear and decide claim construction and related issues. Because the recently filed action brought by Sirius XM and the previously related actions satisfy both prongs of Local Rule 3-12(a), the TPL Defendants and Sirius XM1 respectfully request that the Sirius XM action be administratively related to the pending Acer, HTC, and Barco actions and assigned to the Honorable Jeremy Fogel pursuant to Local Rule 3-12(f). II. SIRIUS XM AND THE TPL DEFENDANTS PROPOSE THE FOLLOWING CASE SCHEDULE IN THE EVENT THE CASES ARE DEEMED RELATED AND ASSIGNED TO JUDGE FOGEL. As mentioned above, the Acer, HTC, Barco, and Sirius XM actions all involve at least three of the same patents-in-suit from TPL's MMP portfolio. To permit Sirius XM and the TPL Sirius XM's joinder in this request is respectfully contingent upon the Court's modification of the case schedule in the previously pending related actions to allow at least as much additional time for Sirius XM to prepare its case as is afforded it in the Schedule proposed in Section II of this Motion. TPL'S AND SIRIUS XM'S CIV. L.R. 3-12 ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED / Case No. C 08-00877 JF 1 -3- 23129\2188714.2 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 Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 Defendants an opportunity to prepare and advance the MMP portion of the case to the same stage as the other three pending suits, Sirius XM and the TPL Defendants have agreed to a proposed schedule as set forth in the table below, which follows the sequence of events set forth in the February 22, 2010 Order Following Case Management Conference in Case Nos. 08-00877 JF; 0800882 JF; and 08-05398 JF, with the dates moved back by an average of 3-4 weeks for the disclosures under Patent Local Rules 3-1, 3-2, 4-1, and 4-2. The parties to the Sirius XM matter have met and conferred with the parties in the Acer, HTC and Barco actions. The parties in the Acer, HTC and Barco actions have agreed to file stipulations and proposed orders in their respective actions continuing the existing dates in their respective scheduling orders to match the MMP dates set forth below. The stipulations that would be filed are attached as Exhibit A. In addition, the Sirius XM action also involves three additional patents (`853, `212, and '949 patents) from a second TPL patent portfolio known as Fast Logic. Patents from the Fast Logic portfolio were initially asserted in the ASUSTeK action, which has settled. The Fast Logic patents are not involved in the Acer, HTC, and Barco actions. To minimize the burden upon the Court at claim construction, Sirius XM and the TPL Defendants propose that the Fast Logic patents be phased from the MMP patents such that all the patent local rule disclosures for the Fast Logic patents occur sixty days after the corresponding dates in the MMP schedule. Sirius XM's and the TPL Defendants' proposed schedule is set forth below in the following chart, which shows the existing schedule for various events, alongside Sirius XM's and the TPL Defendants' proposed schedule: EVENT CURRENT MMP SCHEDULE PROPOSED MMP SCHEDULE April 30, 2010 FAST LOGIC PATENTS PROPOSED SCHEDULE June 30, 2010 Disclosure of Asserted April 19, 2010 Claims and Infringement Contentions and Related Documents Invalidity Contentions June 3, 2010 and Related Documents TPL'S AND SIRIUS XM'S CIV. L.R. 3-12 ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED / Case No. C 08-00877 JF June 30, 2010 August 30, 2010 -4- 23129\2188714.2 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 Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 Proposed Terms and Claim Elements for Construction Preliminary Claim Constructions and Extrinsic Evidence June 25, 2010 July 23, 2010 September 23, 2010 June 25, 2010 August 30, 2010 November 1, 2010 Last day to file joint July 16, 2010 claim construction and pre-hearing statement Claim construction discovery cut-off Defendants' opening claim construction brief Plaintiffs' responsive claim construction brief Defendants' reply claim construction brief Patent Technology Tutorial* Claim construction hearing Status conference August 13, 2010 August 27, 2010 September 21, 2010 October 19, 2010 November 2, 2010 November 19, 2010 December 17, 2010 January 14, 2011 September 10, 2010 November 30, 2010 February 14, 2011 September 17, 2010 December 14, 2010 February 28, 2011 *If requested by the court Approximately 20 days after reply claim construction brief. To be determined Three weeks after the claim construction hearing For the reasons set forth above, Sirius XM and the TPL Defendants respectfully request that the Sirius XM Radio v. Technologies Properties Ltd. action, Case No. C10-00816 EDL, be related to Acer, Inc., v. Technology Properties Ltd., Case No. 08-00877 JF; HTC Corporation v. Technology Properties Ltd., Case No. 08-00882 JF and Barco N.V. v. Technology Properties Ltd., Case No. 08-05398 JF, and that the schedule set forth above be adopted in the case, with respect to Sirius XM and the TPL Defendants, if and when it is related. /// /// /// /// TPL'S AND SIRIUS XM'S CIV. L.R. 3-12 ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED / Case No. C 08-00877 JF -5- 23129\2188714.2 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 Farella Braun & Martel LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 (415) 954-4400 Respectfully submitted: Dated: April 30, 2010 FARELLA BRAUN & MARTEL LLP By: /s/ John L. Cooper John L. Cooper Attorneys for Defendants TECHNOLOGY PROPERTIES LIMITED and ALLIACENSE LIMITED Dated: April 30, 2010 KIRBY NOONAN LANCE & HOGE, LLP By: /s/ Charles T. Hoge Charles T. Hoge Attorneys for Defendant PATRIOT SCIENTIFIC CORPORATION Dated: April 30, 2010 CARROLL BURDICK & MCDONOUGH LLP By: /s/ Eric J. Knapp____________ Eric J. Knapp Attorneys for Plaintiff SIRIUS XM RADIO, INC. IT IS SO ORDERED: Dated: 5/7/10 The Honorable Jeremy Fogel United States District Judge TPL'S AND SIRIUS XM'S CIV. L.R. 3-12 ADMIN. MOTION TO CONSIDER WHETHER CASES SHOULD BE RELATED / Case No. C 08-00877 JF -6- 23129\2188714.2

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