Motorola Mobility, Inc. v. Apple, Inc.

Filing 325

RESPONSE/REPLY in Support of its Motion for Leave to File Amended Answer by Apple, Inc.. (Pace, Christopher)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Case No. 1:10cv023580-Civ-RNS MOTOROLA MOBILITY, INC., Plaintiff, v. JURY TRIAL DEMANDED APPLE INC., Defendant. APPLE INC., Counterclaim Plaintiff, v. MOTOROLA, INC. and MOTOROLA MOBILITY, INC., Counterclaim Defendants. APPLE INC.’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO FILE AMENDED ANSWER US_ACTIVE:\43982355\1\15096.0037 I. INTRODUCTION Notably absent from the opposition brief filed by Motorola Mobility, Inc. (“Motorola”) is any attempt to address the fact that Apple Inc. (“Apple”) adequately pled a “violation of 35 U.S.C § 271” in its answer, see D.E. 68 at ¶¶ 185, 191 & 197, and that the proposed amendments merely add clarifying language to confirm Apple’s infringement theories under § 271(a), (b), (c), and/or (f). Motorola also does not—and cannot—dispute that Apple could not have alleged infringement under § 271(f) theory with specificity earlier because Motorola had not provided any discovery regarding its foreign infringing activities prior to February 28, 2012. Instead, Motorola argues that the Court should allow Apple’s amended pleading only if it also allows Motorola to supplement its infringement contentions with the accused Apple products previously excluded by Judge Ungaro’s December 6, 2012 Order granting Apple’s motion to strike. D.E. 198. Yet, as Apple explained in its opening brief (and to Motorola during the meet and confer process, see Ho Exh. F), the situations are not analogous. II. ARGUMENT Motorola does not dispute that the method and location of installing interactive programming guides (“IPGs”) on the accused set-top boxes (“STBs”) is not the type of information that is publicly available. Motorola similarly does not dispute that it has actively resisted providing the discovery requested by Apple. Indeed, it was only through the February 28, 2012 deposition of Evan Groat that Apple first learned that Motorola’s installation of IPG software on its set-top boxes STBs may occur outside the United States, in violation of 35 U.S.C. § 271(f). For this reason alone, good cause exists to allow Apple’s proposed amendment because the underlying evidence could not have been discovered earlier, despite Apple’s exercise of reasonable diligence, and Apple promptly sought to amend its pleading as soon as it had a factual basis to specifically allege infringement under § 271(f). 2 US_ACTIVE:\43982355\1\15096.0037 Motorola’s offer to withdraw its objections to Apple’s amended pleading if the Court allows Motorola to amend its infringement contentions is simply another attempt to end run around Judge Ungaro’s prior Order.1 Unlike Motorola, Apple is not attempting to amend its infringement contentions or add any new accused products. Regardless of whether Motorola’s infringement occurs within the United States or abroad, Apple’s contentions regarding the functionalities of the accused Motorola STBs are the same. At most, Apple’s proposed amendment will require Motorola to provide more damages-related discovery, but only because Motorola has been improperly withholding financial data related to sales of accused STBs for which the installation of IPGs occurs abroad. In contrast, Motorola’s proposed amendment of its infringement contentions not only seeks to open the door to discovery regarding completely new products, but also new theories regarding the accused functionalities in those products. It would be impossible for Apple to gather, review, and produce all the responsive documents and source code or make all its witnesses available for deposition within the current discovery period, which is scheduled to end on May 4, 2012. Moreover, Apple would need to conduct an internal investigation to determine which witnesses could testify concerning the newly accused products and functionalities. In some cases, these might be the same witnesses who have already been deposed by Motorola, but in others, it might take weeks to determine who the most knowledgeable individuals are. III. CONCLUSION For the reasons stated above and in Apple’s opening brief, Apple respectfully requests that the Court grant it leave to amend its answer. 1 While Apple does not agree to the lopsided horse-trade proposed by Motorola, Apple proposes consolidating the two actions pending before this Court and extending the procedural schedule to allow sufficient time for the discovery needed on the newly accused products. If the Court grants Apple’s Motion to Amend the Procedural Schedule, D.E. 323, this motion (and Motorola’s objections thereto) would be rendered moot. 3 US_ACTIVE:\43982355\1\15096.0037 DATED: April 18, 2012 Respectfully submitted, /s/ Christopher R. J. Pace Christopher R. J. Pace Edward Soto WEIL, GOTSHAL & MANGES LLP 1395 Brickell Avenue, Suite 1200 Miami, FL 33131 Telephone: (305) 577-3100 Facsimile: (305) 374-7159 Attorneys for Apple Inc. Of Counsel: Matthew D. Powers Steven Cherensky Tensegrity Law Group LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: 650-802-6000 Facsimile: 650-802-6001 Mark G. Davis WEIL, GOTSHAL & MANGES LLP 1300 Eye Street, N.W., Suite 900 Washington, DC 20005 Telephone: (202) 682-7000 Facsimile: (202) 857-0940 Anne M. Cappella Jill J. Schmidt WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3000 Facsimile: (650) 802-3100 Robert T. Haslam COVINGTON & BURLING LLP 333 Twin Dolphin Drive, Suite 700 Redwood Shores, CA 94065 Telephone: (650) 632-4700 Facsimile: (650) 632-4800 Robert D. Fram Christine Saunders Haskett Samuel F. Ernst COVINGTON & BURLING LLP One Front Street San Francisco, CA 94111 Telephone: (415) 591-6000 Facsimile: (415) 591-6091 4 US_ACTIVE:\43982355\1\15096.0037 CERTIFICATE OF SERVICE I hereby certify that on April 18, 2012, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to received electronically Notices of Electronic Filing. /s/ Christopher R. J. Pace Christopher R. J. Pace (Fla. Bar No. 0721166) 5 US_ACTIVE:\43982355\1\15096.0037 SERVICE LIST Motorola Mobility, Inc. versus Apple Inc. Case No. 1:10cv023580-Civ-RNS United States District Court, Southern District of Florida Edward M. Mullins Fla. Bar No. 863920 ASTIGARRAGA DAVIS MULLINS & GROSSMAN, P.A. 701 Brickell Avenue, 16th Floor Miami, FL 33131 Telephone: (305) 372-8282 Facsimile: (305) 372-8202 Of Counsel: Charles K. Verhoeven David A. Perlson QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, CA 93111 (415) 875-6600 Raymond N. Nimrod Edward J. DeFranco QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 (212) 849-7000 David A. Nelson QUINN EMANUEL URQUHART & SULLIVAN, LLP 500 West Madison Street, Suite 2450 Chicago, IL 60661 (312) 705-7400 Attorneys for Motorola Mobility, Inc. and Motorola, Inc. Electronically served via email 6 US_ACTIVE:\43982355\1\15096.0037

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?