EIT Holdings, LLC v. Linkedin Corporation

Filing 34

Supplemental Joint Case Management Statement) filed by EIT Holdings, LLC. (Goldstein, Edward) (Filed on 1/3/2012) Modified on 1/5/2012 (bw, COURT STAFF).

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Mark W. Good (SBN 218809)
Benedict O’Mahoney (SBN 152447
TERRA Law L.L.P.
117 Park Avenue, Third Floor
San Jose, California 95113
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Alisa A. Lipski (SBN 278710)
Edward W. Goldstein (TX Bar No. 08099500)
Goldstein & Lipski PLLC
1177 West Loop South, Suite 400
Houston, Texas 77027
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

Daralyn Durie (SBN 169825)
Ryan M. Kent (SBN 220441)
Eugene Novikov (SBN 257849)
Durie Tangri LLP
217 Leidesdorff Street
San Francisco, CA. 94111
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Attorneys for Defendant
LinkedIn Corporation

Attorneys for Plaintiff
EIT Holdings LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

18 EIT HOLDINGS LLC, a Delaware company
Plaintiff,

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CASE NO. 5:11-CV-02465-PSG
SUPPLEMENTAL JOINT CASE
MANAGEMENT STATEMENT

vs.

21 LINKEDIN CORPORATION., a Delaware
Corporation,

DEMAND FOR JURY TRIAL

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Defendant.

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Pursuant to the Court’s Order of November 1, 2011 (Doc. 29), Plaintiff EIT Holdings,

26 LLC (“EIT”) and Defendant LinkedIn Corporation (“LinkedIn”) submit this Supplemental Joint
27 Case Management Report.
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DESCRIPTION OF SUBSEQUENT CASE DEVELOPMENTS

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On September 6, 2011, the parties came before the Court for their initial case management

3 conference. At that conference and in their joint case management statement (ECF No. 22), the
4 parties explained the procedural history of the ligitation. In particular, the parties explained that
5 EIT filed a patent infringement action against multiple Defendants in the Northern District of
6 California before the Honorable William H. Alsup (C-10-05623-WHA) and that Judge Alsup
7 dismissed all except the first-named Defendant Yelp! Inc. based on misjoinder. The parties further
8 explained that this case follows from Judge Alsup’s order and involves the same patent as the
9 prior-filed Yelp case—United States Patent No. 5,828,837 (“the ‘837 patent”). Given that Judge
10 Alsup had set a claim construction hearing involving the same patent for early October 2011, the
11 parties asked the Court to continue the case management conference and to hold off setting a
12 schedule until Judge Alsup had had time to consider EIT and Yelp’s respective positions on what
13 the claims mean. On October 24th, Judge Alsup issued his claim construction order.
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On November 18, 2011, Yelp filed a Motion for Summary Judgment of Invalidity. EIT

15 filed its Opposition on December 16, 2011. Oral argument is set for January 19, 2012.
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The result of the motion for summary judgment filed in the Yelp case has the potential to

17 significantly impact this case. Those proceedings could result in a judgment of invalidity as to
18 one or both of the asserted claims of the ‘837 patent. Those proceedings also could reveal
19 additional claim terms that would need construction either by Judge Alsup or this Court. While
20 LinkedIn agrees with the current claim constructions issued by Judge Alsup, and would not
21 challenge their adoption in this case by this Court, EIT disagrees. Because Judge Alsup limited
22 the number of claims to be construe to six and because he declined to construe one of those six,
23 EIT believes additional claim construction would be beneficial.
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The parties also appeared at a settlement conference with Magistration Judge Spero

25 on December 6, 2011. That settlement conference was not successful.
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The parties remain in disagreement as to proposed deadlines in this matter.

27 EIT’s Position
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EIT has been following the local rules and proposes a schedule that continues to follow

2 the local rules, which includes the filing of the joint claim construction statement concurrent
3 with this report. LinkedIn has declined to confer or otherwise participate in that joint statement.
4 Defendants’ Position
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Defendant does not believe that the Court set a schedule that would require the filing of a

6 joint claim construction statement today. At the initial case management conference, the Court
7 merely set a further status conference and ordered that “[d]eadlines prior to November 1st to
8 remain in effect.” ECF No. 23. At that status conference, the parties updated the Court on the
9 events in the Yelp case, and the Court set a further status conference without any indication that
10 there were any deadlines that the parties needed to meet. ECF No. 29. Defendant therefore
11 believes it to be premature to file a joint claim construction statement and would request that the
12 Court set an appropriate date for filing that statement at the case management conference.
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Defendant also believes that the schedule proposed by EIT is impractical. EIT proposes

14 the filing of a joint claim construction statement today but the parties have yet to meet and
15 confer on what terms should be presented to the Court or on whether they can reach agreement
16 on the meaning of such proposed terms. Moreover, in deciding what is an appropriate schedule,
17 LinkedIn believes that the process contemplated by the local rules is better served by providing
18 the parties time to consider the results of the hearing on Yelp’s motion for summary judgment to
19 be held on January 19, 2012. In particular, the construction of several terms proposed by EIT for
20 construction in this case—including the phrases “reference” and “means for accessing”—have
21 been raised by EIT in the summary judgment proceedings pending before Judge Alsup, and
22 Judge Alsup’s ruling is likely to have a direct impact on what (if any) construction is appropriate
23 for these terms. It also true that claim construction in this case will prove necessary only if
24 Judge Alsup’s ruling does not invalidate the asserted claims. In that event, which Defendant
25 believes to be unlikely, the court’s order may shed light on further terms that need construction
26 to resolve this case. It therefore makes little sense to finalize the claim terms and constructions
27 that would have to be litigated in this case before the parties have an opportunity to review Judge
28 Alsup’s order on summary judgment.
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The parties propose the following schedules:

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Event

EIT

LinkedIn

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File Joint Claim Construction Statement
(Patent L.R. 4-3) – limited to 10 terms
unless leave of court granted

January 3, 2012

April 3, 2012

February 2, 2012

May 7, 2012

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Completion of Claim Construction
Discovery (Patent L.R. 4-4)

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Last Day for Plaintiff’s Opening Claim
Construction Brief (Patent L.R. 4-5(a))

February 17, 2012

May 21, 2012

Last Day for Defendant’s Opposing Claim
Construction Brief, (Patent L.R. 4-5(b))

March 2, 2012

June 4, 2012

Last Day for Plaintiff’s Reply Claim
Construction Brief (Patent L.R. 4-5(c))

March 9, 2012

June 11, 2012

Tutorial

Subject to Court's
calendar

Subject to Court’s
calendar

Claim Construction Hearing

Subject to Court’s
calendar

Subject to Court’s
calendar

Further Joint Case Management Report and Within 30 days of
Conference
claim construction
ruling

Within 30 days of
claim construction
ruling

Advice of Counsel Disclosure

50 days after claim
construction ruling

50 days after claim
construction ruling

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Close of Fact Discovery

TBD

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Deadline for Rule 26(a)2(B) expert
TBD
designations for party bearing the burden of
proof

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Close of all Expert Discovery

TBD

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Deadline for filing dispositive motions

TBD

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Deadline for oppositions to dispositive
motions

TBD

Deadline for replies in support of
dispositive motions

TBD

The parties propose that the hearings on
dispositive motions be held before this date

TBD

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Event

EIT

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Deadline for filing motions in limine; and
papers in support thereof

TBD

The parties shall file a joint statement of
the case, a joint exhibit list, a joint witness
list, proposed jury instructions and a
proposed verdict form;

TBD

TBD

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The parties will lodge the Final Pre-Trial
Conference Order;

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Trial

TBD

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LinkedIn

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Dated: January 3, 2012

Respectfully submitted,

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Counsel for EIT Holdings, LLC

Counsel for LinkedIn Corporation

By: /s/ Edward W. Goldstein

By: s/_Ryan Kent______________

15 Alisa A. Lipski (SBN 278710)
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Daralyn Durie (SBN 169825)
Ryan M. Kent (SBN 220441)
Durie Tangri LLP
217 Leidesdorff Street
San Francisco, CA. 94111
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

Edward W. Goldstein (TX Bar No. 08099500)
GOLDSTEIN & LIPSKI, P.L.L.C.
1177 West Loop South, Suite 400
Houston, TX 77027
Tel: [phone]
Fax: [phone]
Email: [e-mail]
Email: [e-mail]

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Benedict O’Mahoney (SBN 152447)

21 TERRA Law LLP
177 Park Avenue, Third Floor

22 San Jose, California 95113
Tel: [phone]

23 Fax: [phone]
24 Email: [e-mail]
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Attestation of Concurrence
I, Edward W. Goldstein, as the ECF user and filer of this document, attest that
concurrence in the filing of this document has been obtained from each of the above signatories.

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Dated: January 3, 2012

By: /s/ Edward W. Goldstein

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Counsel for EIT Holdings, LLC

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CERTIFICATE OF SERVICE

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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 January 3, 2012, or, if not yet registered with the Court's CM/ECF system, via
electronic mail pursuant to Fed.R.Civ.P. 5(b)(2)(E). Any other counsel of record will be served by
first class U.S. Mail.

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/s/ Edward W. Goldstein
Edward W. Goldstein

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