Motorola Mobility, Inc. v. Apple, Inc.

Filing 143

RESPONSE in Opposition re 141 MOTION for Extension of Time to Extend Length of Markman Hearing filed by Motorola Mobility, Inc.. (Attachments: # 1 Exhibit 1)(Mullins, Edward)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Case No. 1:10-cv-23580-UU MOTOROLA MOBILITY, INC., Plaintiff, v. JURY TRIAL DEMANDED APPLE INC., Defendant. APPLE INC., Counterclaim Plaintiff, v. MOTOROLA, INC. and MOTOROLA MOBILITY, INC., Counterclaim Defendants. MOTOROLA’S OPPOSITION TO APPLE’S MOTION TO EXTEND LENGTH OF MARKMAN HEARING During the Tutorial hearing, the Court asked the parties whether two days or three days would be sufficient for the Markman hearing. At that time, both Apple and Motorola agreed that two days would be sufficient time. Counsel for Apple stated, “I think two will be sufficient. I think there will be two. I think we can assume two full days.” (10/6/11 Transcript at 208:5-7). Indeed, as confirmed at the September 7, 2011 teleconference, the parties previously had agreed that only three hours for each side would be sufficient time for presentations on the terms at issue at the Markman hearing. (9/7/11 Transcript at 6:7-12, 7:8-13). Yet, on Saturday, October 8, 2011, Apple changed course and demanded Motorola let Apple know “ASAP” whether Motorola would agree to the schedule of three truncated days it requests in the instant motion. See Exhibit 1. Motorola responded the next day, Sunday, indicating it continued to believe the two days the parties had agreed was sufficient. Id. Yet, Case No. 1:10-cv-23580-UU Motorola also asked Apple to explain why Apple believed that two days no longer was sufficient and to meet and confer on the subject. Id. In its response on Monday afternoon, Apple failed to explain why it was seeking additional time. Id. Motorola again asked to meet and confer and for a substantive explanation of Apple’s position. Id. The next day, Apple again refused to meet and confer (id.), and filed the present motion a few minutes later. Apple’s failure to meet and confer is alone grounds for denial.1 See S.D. Fla. L.R. 7.1(a). In any event, as the parties previously agreed, a two-day Markman hearing will provide both parties ample time to address all of the disputed terms. A two-day Markman hearing would mean that each side would get approximately 5.5 hours per side – almost double the 3 hours per side the parties previously had agreed. Also, several of the disputed terms share similar facts and/or legal arguments. For instance, one of the key disputes concerning “listing means” and “listing interface means” is whether the structure of those terms requires software. Motorola has been working to focus its arguments and narrow the issue, so as to be respectful of the Court's time. There is no reason why Apple cannot do the same. Further, Apple’s new proposed schedule is not an efficient use of the Court’s or parties’ time. For while Apple’s proposed “extension” adds an extra day, it also reduces the hours of each day to 10 a.m. to 4 p.m. (whereas the tutorial hearing went from 10 a.m. to 6 p.m.). Thus, under Apple’s proposed extension with the truncated days, the parties actually only would receive two-to-three more hours of argument. Further, Motorola’s preparations have been made under the assumption that the Markman hearing would last only two days. Motorola’s local counsel has a client meeting scheduled for the morning of October 19, and would not be able to attend part or all of the third day. Thus, it would be prejudicial to Motorola to change the length of the Markman hearing at this time. Accordingly, Apple’s motion should be denied, and the Markman hearing should proceed for two days as the parties previously agreed. 1 Apple similarly refused to meet in good faith regarding its recent Motion to Stay. See Motorola’s Opposition to Defendant's Motion to Stay, dated September 28, 2011 (Dkt. No. 121), at 6. -2- Case No. 1:10-cv-23580-UU Therefore, Motorola respectfully requests that the Court deny Apple’s motion for an extension of the length of the Markman hearing. Dated: October 12, 2011 Respectfully submitted, MOTOROLA SOLUTIONS, INC. (f/k/a MOTOROLA, INC.) AND MOTOROLA MOBILITY, INC. By: /s/ Anthony Pastor Charles K. Verhoeven* David Perlson* Anthony Pastor* QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Tel: (415) 875-6600 / Fax: (415) 875-6700 Email: By: /s/ Edward M. Mullins___ Edward M. Mullins (863920) Astigarraga Davis Mullins & Grossman, P.A. 701 Brickell Avenue, 16th Floor Miami, Florida 33131 Tel.: (305) 372-8282 / Fax: (305) 372-8202 Email: Edward J. DeFranco* Quinn Emanuel Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel.: (212) 849-7000 / Fax: (212) 849-7100 Email: David A. Nelson* QUINN EMANUEL URQUHART & SULLIVAN, LLP 500 West Madison St., Ste. 2450 Chicago, IL 60661 Tel.: (312) 705-7400 / Fax: (312) 705-7401 Email: *Admitted pro hac vice Attorneys for Plaintiff and CounterclaimDefendant Motorola Solutions, Inc. and Motorola Mobility, Inc. -3- Case No. 1:10-cv-23580-UU CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 12, 2011, I served the foregoing document via electronic mail on all counsel of record identified on the attached Service List. /s/ Edward M. Mullins Edward M. Mullins -4- Case No. 1:10-cv-23580-UU SERVICE LIST Motorola Mobility, Inc. v. Apple Inc. Case No. 1:10-cv-23580-UU United States District Court, Southern District of Florida Christopher R.J. Pace Weil, Gotshal & Manges LLP 1395 Brickell Avenue, Suite 1200 Miami, Florida 33131 Tel.: (305) 577-3100 / Fax: (305) 374-7159 Matthew D. Powers Steven S. Cherensky Tensegrity Law Group LLP 201 Redwood Shores Parkway, Suite 401 Redwood Shores, CA 94065 Tel.: (650) 802-6000 Mark G. Davis WEIL, GOTSHAL & MANGES LLP 1300 Eye Street, N.W., Suite 900 Washington, DC 20005 Tel.: (202) 682-7000 / Fax: (202) 857-0940 Robert T. Haslam COVINGTON & BURLING LLP 333 Twin Dolphin Drive, Suite 700 Redwood Shores, CA 94065 Tel.: (650) 632-4700 / Fax: (650) 632-4800 Robert D. Fram Christine Saunders Haskett COVINGTON & BURLING LLP One Front Street San Francisco, CA 94111 Tel.: (415) 591-6000 / Fax: (415) 591-6091 Attorneys for Apple, Inc. Electronically served via CM/ECF -5-

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