Motorola Mobility, Inc. v. Apple, Inc.

Filing 165

NOTICE by Motorola Mobility, Inc. Motorola's Reply to Apple's Response to Motorola's Infringement Contentions (Mullins, Edward)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Case No. 1:10-23580-Civ-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 REPLY TO APPLE’S RESPONSE TO MOTOROLA’S INFRINGEMENT CONTENTIONS In the late hours of Friday, October 28, 2011, Apple filed an unauthorized “response” to Motorola’s Court-ordered submission regarding infringement contentions. Apple’s response is replete with misrepresentations of the record and revisionist history. It warrants a brief reply. First, as detailed in Motorola’s Notice, Apple’s own infringement contentions, served in advance of the June 1 deadline, were explicitly called “preliminary” and do not reflect any intent that the contentions would be “final” in any way. Rather, Apple explicitly (1) reserved the right Case No. 1:10-23580-Civ-UU to amend, supplement, and correct them “as additional information becomes available to Apple during the course of its discovery and investigation,” (2) stated that “Apple may identify additional claims that are infringed and additional accused products,” and (3) “expressly reserve[d] the rights to modify or amend the contentions contained herein based on the Court’s claim constructions or to reflect additional information that becomes available to Apple as discovery proceeds.” See D.E. 160 Ex. 2 at 3, 5. In a footnote, Apple suggests that the parties reserved the right to supplement the contentions solely so that they could modify them between May 18 and June 1. D.E. 162 at 1 n.1. But that does not comport with the record. Both parties specifically reserved the right to supplement these “preliminary” contentions throughout discovery and after claim construction, not just during the short period between May 18 and June 1. Indeed, no deposition or other meaningful discovery was scheduled for that two-week period. The fact that Apple did not supplement them to be “final” during that period signifies nothing beyond Apple’s acknowledgement, as shown in its contentions, that there was no need to do so. Second, Apple failed for more than five months to notify Motorola that Apple considered its or Motorola’s infringement contentions to be final. If Apple after the June 1 order did consider these contentions to be final, the proper course would have been to notify Motorola of this position. But between May 18 and October 19—the third day of the claim construction hearing—Apple said nothing, despite the parties’ frequent meet-and-confer discussions concerning scheduling, deadlines, discovery, claim construction, or any other matter. Meanwhile, Motorola was operating under the assumption that Apple’s infringement contentions were preliminary and that Apple and Motorola each had the right to amend those contentions, a right expressly reserved in both parties' May 18 contentions. Instead, Apple first raised its argument in classic “gotcha” fashion during the Markman hearing. This delay was highly prejudicial to Motorola, since Motorola had been proceeding since May 18, 2011 under the assumption that both parties’ infringement contentions were preliminary as both said they were, and given there was no Order to the contrary. Needless to say, had 2 Case No. 1:10-23580-Civ-UU Motorola known of Apple’s position as to the finality of the contentions, Motorola would have taken a different course of action—for instance, massively accelerating its discovery efforts in order to collect all evidence necessary to “finalize” its infringement contentions. Moreover, if the contentions were locked in on June 1, Motorola would be unable to pursue newly released products and services such as the iPhone 4s and iCloud, both released by Apple months after June 1, another fact Apple ignores in its Response. Apple, by contrast, suffers no prejudice if Motorola is allowed to supplement its infringement contentions, since Apple knew all along that Motorola had explicitly reserved the right to supplement its May 18, 2011 contentions through the course of discovery. Third, Apple’s argument that Motorola has not shown “good cause” to supplement its infringement contentions or change the schedule, is a non sequitur because the June 1 date was not a deadline for “final” infringement contentions in the first place. Thus, there was no date that Motorola needs to show good cause to change.1 Apple’s reference to local patent rules in other courts also is irrelevant. No such rules have been adopted in this district, nor are they taken into consideration in scheduling. It would be grossly unfair and prejudicial to hold Motorola to patent local rules in other courts with no notice, months into this litigation. Fourth, Apple argues that Motorola has not been “diligent” in pursuing discovery in this case, suggesting that documents cross-produced from other litigation should be adequate for Motorola to finalize its infringement contentions in the present matter. To the contrary, the cross-produced documents do not relate to the present case, and Motorola has demanded that Apple produce additional documents relevant to this specific case. Without such documents, Motorola cannot properly complete its infringement contentions and theories. Nor has Apple 1 Even if Apple were somehow correct and the June 1 deadline was for final contentions, then Motorola has “good cause” for supplementing its contentions by showing that it reasonably relied upon Apple’s representations that its prior submissions were only preliminary and that is what the parties intended, and additionally through the addition of the iPhone 4s and iCloud as accused products and services, both of which were released months after June 1. 3 Case No. 1:10-23580-Civ-UU offered 30(b)(6) witnesses to testify on Apple’s behalf, despite the fact that Motorola’s 30(b)(6) deposition notice has been outstanding for several months. Despite complaining about Motorola’s ostensible lack of diligence, Apple’s own lack of diligence in producing its documents and witnesses has contributed to Motorola’s inability to complete its infringement contentions. Apple now seeks to benefit from its own failure to produce documents and witnesses, and hold Motorola’s contentions as “final” when no such deadline has ever been set by this Court, or intended by the parties. Dated: October 31, 2011 Respectfully submitted, /s/ Edward M. Mullins Edward M. Mullins (Fla. Bar No. 863920) Douglas J. Giuliano (Fla. Bar No. 15282) ASTIGARRAGA DAVIS MULLINS & GROSSMAN, P.A. 701 Brickell Avenue, 16th Floor Miami, Florida 33131 Tel.: (305) 372-8282 / Fax: (305) 372-8202 Charles K. Verhoeven* David A. Perlson* Anthony Pastor* QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Tel.: (415) 875-6600 / Fax: (415) 875-6700 Edward J. DeFranco* Raymond N. Nimrod* QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Tel.: (212) 849-7000 / Fax: (212) 849-7100 4 Case No. 1:10-23580-Civ-UU David A. Nelson* QUINN EMANUEL URQUHART & SULLIVAN, LLP 500 West Madison Street, Suite 2450 Chicago, Illinois 60661 Tel.: (312) 705-7400 / Fax: (312) 705-7401 *Admitted pro hac vice Counsel for Plaintiff/Counterclaim-Defendant Motorola Solutions, Inc. and Motorola Mobility, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 31, 2011, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF filing system. I also certify that the foregoing document is being served this date on all counsel of record or pro se parties on the Service List below in the manner specified, either via transmission of Notices of Electronic Filing generated by the CM/ECF system or; in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ Edward M. Mullins Edward M. Mullins (Fla. Bar No. 863920) 5 Case No. 1:10-23580-Civ-UU SERVICE LIST Motorola Mobility, Inc. v. Apple, Inc. Case No.: 1:10-23580-Civ-UU United States District Court, Southern District of Florida Samuel F. Ernst* Christine Saunders Haskett* Robert D. Fram* Chris Martiniak* Winslow B. Taub* Covington & Burling LLP One Front Street San Francisco, California 94111-5356 Tel.: (415) 591-6000 / Fax: (415) 591-6091 Christopher R.J. Pace Edward Soto Weil, Gotshal & Manges LLP 1395 Brickell Avenue, Suite 1200 Miami, Florida 33131 Tel.: (305) 577-3100 / Fax: (305) 374-7159 Nathan A. Greenblatt* Jill J. Ho* Jacqueline T. Harlow* Anne M. Cappella* Brian C. Chang* Weil, Gotshal & Manges, LLP 201 Redwood Shores Parkway Redwood Shores, California 94065-1134 Tel.: (650) 802-3000 / Fax: (650) 802-3100 Robert T. Haslam* Covington & Burling LLP 333 Twin Dolphin Drive, Suite 700 Redwood Shores, California 94065 Tel.: (650) 632-4700 / Fax: (650) 632-4800 Jenny C. Wu* Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 Tel.: (212) 310-8000 / Fax: (212) 310-8007 Matthew D. Powers* Steven S. Cherensky* Tensegrity Law Group LLP 201 Redwood Shores Parkway, Suite 401 Redwood Shores, California Tel.: (650) 802-6000 / Fax: (650) 802-6001 Mark G. Davis* Weil, Gotshal & Manges LLP 1300 Eye Street, NW, Suite 900 Washington, DC 20005 Tel.: (202) 682-7000 / Fax: (202) 857-0940 *Admitted pro hac vice Counsel for Defendant/Counterclaim Plaintiff Apple Inc. Electronically served via CM/ECF 6

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