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)

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.

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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: [phone] / Fax: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
By:
/s/ Edward M. Mullins___
Edward M. Mullins (863920)
Astigarraga Davis Mullins & Grossman, P.A.
701 Brickell Avenue, 16th Floor
Miami, Florida 33131
Tel.: [phone] / Fax: [phone]
Email: [e-mail]
Edward J. DeFranco*
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Avenue, 22nd Floor
New York, New York 10010
Tel.: [phone] / Fax: [phone]
Email: [e-mail]
David A. Nelson*
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 West Madison St., Ste. 2450
Chicago, IL 60661
Tel.: [phone] / Fax: [phone]
Email: [e-mail]
*Admitted pro hac vice
Attorneys for Plaintiff and CounterclaimDefendant Motorola Solutions, Inc. and
Motorola Mobility, Inc.
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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

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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
[e-mail]
Weil, Gotshal & Manges LLP
1395 Brickell Avenue, Suite 1200
Miami, Florida 33131
Tel.: [phone] / Fax: [phone]
Matthew D. Powers
[e-mail]
Steven S. Cherensky
[e-mail]
Tensegrity Law Group LLP
201 Redwood Shores Parkway, Suite 401
Redwood Shores, CA 94065
Tel.: [phone]
Mark G. Davis
[e-mail]
WEIL, GOTSHAL & MANGES LLP
1300 Eye Street, N.W., Suite 900
Washington, DC 20005
Tel.: [phone] / Fax: [phone]
Robert T. Haslam
[e-mail]
COVINGTON & BURLING LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065
Tel.: [phone] / Fax: [phone]
Robert D. Fram
[e-mail]
Christine Saunders Haskett
[e-mail]
COVINGTON & BURLING LLP
One Front Street
San Francisco, CA 94111
Tel.: [phone] / Fax: [phone]
Attorneys for Apple, Inc.
Electronically served via CM/ECF

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