Motorola Mobility, Inc. v. Apple, Inc.

Filing 185

RESPONSE in Opposition re 178 MOTION to Strike Motorola's Supplemental Infringement Contentions filed by Motorola Mobility, Inc.. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14)(Giuliano, Douglas)

EXHIBIT 7

John Duchemin
From:
Sent:
To:
Cc:
Subject:

David Perlson
Monday, November 14, 2011 9:35 AM
Ferguson, Brian; Apple Moto Weil; [e-mail]
Moto-Apple-662-WI; Weil_TLG Apple Moto FL External
RE: Apple Inc.; et al. v. Motorola, Inc., et al - WI 662

Brian,
We are not “manufacturing” any inconsistency.
You state, “In contrast, the Court in Florida made it clear that the infringement contentions deadline was final in nature,
i.e., it represented a hard deadline beyond which no supplementation would be allowed.” But the scheduling orders in
both Wisconsin and Florida both refer to “Infringement Contentions.” The Wisconsin order says nothing about
“preliminary” contentions and the Florida order says nothing about “final” contentions. And obviously there are
deadline for expert reports in both cases. In what way does Apple contend that “the Court in Florida made it clear that
the infringement contentions deadline was final in nature” that is in any way different from what the Court ordered in
Wisconsin regarding “infringement contentions”?
You also try to support the supposed difference between the “practice” is due to the fact that “expert reports are served
long before the close of fact discovery in Wisconsin,” which seems to be a non-sequitor. Please explain why that
supports Apple’s position. Indeed, in both cases, “infringement contentions” were due several months before the close
of fact discovery and in both cases “infringement contentions” were due before claim construction.
David

From: Ferguson, Brian [mailto:[e-mail]]
Sent: Friday, November 11, 2011 1:39 PM
To: David Perlson; Apple Moto Weil; [e-mail]
Cc: Moto-Apple-662-WI; Weil_TLG Apple Moto FL External
Subject: RE: Apple Inc.; et al. v. Motorola, Inc., et al - WI 662

Dear David:
Your attempt to manufacture an inconsistency between Apple's positions in Wisconsin and Florida is without
merit. It is clear that, in Wisconsin, the practice is that the March 4, 2011 date for infringement contentions is
for preliminary contentions and final contentions are contained in the expert reports, which are served long
before the close of fact discovery in Wisconsin. In contrast, the Court in Florida made it clear that the
infringement contentions deadline was final in nature, i.e., it represented a hard deadline beyond which no
supplementation would be allowed. Accordingly, Apple will not strike any portions of its expert reports
addressing products Motorola introduced after the March 4, 2011 contentions date.
Regards,
Brian

1

Brian E. Ferguson
Weil, Gotshal & Manges LLP
1300 Eye Street NW, Suite 900
Washington, DC 20005-3314
[e-mail]
[phone] Direct
[phone] Mobile
[phone] Fax

From: David Perlson [mailto:[e-mail]]
Sent: Thursday, November 10, 2011 1:42 PM
To: Apple Moto Weil; [e-mail]
Cc: Moto-Apple-662-WI; Weil_TLG Apple Moto FL External
Subject: Apple Inc.; et al. v. Motorola, Inc., et al - WI 662
Counsel,
The December 20, 2010 Scheduling Order in the Wisconsin 662 case provides that “infringement contentions” were due
March 4, 2011. In Apple’s September 15, 2011 expert reports, Apple includes numerous products that were not accused
or mentioned in its March 4 contentions. This is inconsistent with Apple’s position regarding the June 1 date for
“infringement contentions” in Apple’s Motion to Strike in the Florida case. In particular, in Florida, Apple takes the position
that products not mentioned in a parties’ operative “infringement contentions” may not later be accused in the case even if
they were not released at the time the infringement contentions were served, stating for example, “Both parties have
released new products since the Court-ordered deadline for infringement contentions, but allowing the parties to add
newly-released products to infringement contentions would become a never-ending process, requiring yet more discovery,
and the case would never proceed to trial.”
Given Apple’s stated position on the issue in the Florida case, does Apple intend to strike the products from its expert
reports that were not mentioned in its March 4, 2011 contentions in Wisconsin? Specifically, these products include the
Droid 3, Droid X2, Milestone, Photon, Spice, Titanium, Triumph, and XPRT. Please respond by close of business
tomorrow.

David

David Perlson
Partner,
Quinn Emanuel Urquhart & Sullivan, LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
415-875-6344 Direct
415.875.6600 Main Office Number
415.875.6700 FAX
[e-mail]
www.quinnemanuel.com
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