Motorola Mobility, Inc. v. Apple, Inc.

Filing 362

REPLY to Response to Motion re (361 in 1:10-cv-23580-RNS) MOTION to Amend/Correct (84 in 1:12-cv-20271-RNS) Scheduling Order,,, MEMORANDUM OF LAW AND MOTION TO AMEND THE PROCEDURAL SCHEDULE filed by Apple Inc.. (Attachments: # 1 Exhibit 1 - Current iPhone Models, # 2 Exhibit 2 - Current Motorola Phones for Sale, # 3 Exhibit 3 - 8/21/12 Email from Searcy to Davis, # 4 Exhibit 4 - 8/15/12 Email from Vlasis to Searcy, # 5 Exhibit 5 - 9/17/12 Email from Searcy to Vlasis, # 6 Exhibit 6 - 9/14/12 Email from Searcy to Vlasis, # 7 Exhibit 7 - 9/24/12 Email from Vlasis to Searcy, # 8 Exhibit 8 - 10/1/12 Email from Vlasis to Searcy, # 9 Exhibit 9 - 10/5/12 Email from Vlasis to Searcy, # 10 Exhibit 10 - 10/8/12 Email from Vlasis to Searcy, # 11 Exhibit 11 - 10/9/12 Email from Davis to Vlasis, # 12 Exhibit 12 - 10/11/12 Email from Vlasis to Davis, # 13 Exhibit 13 - 10/11/12 Email from Davis to Vlasis, # 14 Exhibit 14 - 10/16/12 Letter from Bonifield to Vlasis)Associated Cases: 1:12-cv-20271-RNS, 1:10-cv-23580-RNS(Pace, Christopher)

EXHIBIT 14

quinn emanuel

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October 16, 2012
VIA E-MAIL
Robert T. Vlasis III, Esq.
Weil, Gotshal & Manges LLP
1300 Eye Street NW, Suite 900
Washington, DC 20005-3314
Re:

Motorola Mobility, Inc. v. Apple Inc., Consolidated Case Nos. 1:10-cv-23580-RNS and
1:12-cv-20271-RNS (S.D. Fla.)

Dear Robert:
I write regarding Apple’s motion to amend the procedural schedule, which Apple filed shortly
before midnight on Thursday, October 11. As you know, the parties were in the middle of
negotiating toward a mutually agreeable schedule for claim construction briefing when Apple
filed its motion. We do not understand why Apple filed a motion on claim the claim
construction briefing schedule without meeting and conferring with Motorola regarding the
limited disagreement between the parties regarding that schedule, or even waiting for us to
respond to your most recent email, as we informed you we would. Your motion will simply
waste the time and resources of the Court. Apple should therefore withdraw its motion with
respect to the claim construction briefing schedule and the parties should submit an agreed
motion on claim construction briefing.
Motorola initiated discussions relating to the claim construction briefing schedule in an effort to
determine a schedule that would work for both parties without involving the Court, a schedule
that would enable both parties to understand each other’s positions going into the briefing
quinn emanuel urquhart & sullivan, llp
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process so that claim construction briefing would be as helpful to the court as possible. On
September 14, 2012, Motorola provided Apple with an initial proposed schedule. Apple then
responded on September 24 with several proposed changes. On October 9, Motorola replied to
Apple’s proposal, agreeing to several of Apple’s new dates. The table below from our October 9
email summarizes the parties’ three proposals:
Case Event

Motorola Initial
Proposed Date

Apple
Proposed Date

Motorola
Revised
Proposed Date

Infringement Contentions
Invalidity Contentions
Non-infringement, Validity, &
Secondary Consideration
Contentions
Exchange of Terms for
Construction
Exchange Proposed Constructions

Nov. 7, 2012
Dec. 5, 2012
Jan. 24, 2013

Jan. 24, 2013

Jan. 24, 2013

Feb. 12, 2013

February 4,
2013
February 12,
2013

January 11,
2013
February 12,
2013 (include
extrinsic and
intrinsic
evidence)
March 2, 2013

Feb. 26, 2013
Mar. 1, 2013
Mar. 26, 2013
Apr. 26, 2013
May 31, 2013
July 5, 2013
Aug. 16, 2013
Sept. 6, 2013
Oct. 4, 2013
Nov. 1, 2013
Nov. 8, 2013
Nov. 15, 2013
January 31, 2014

March 5, 2013

March 5, 2013

Mar. 26, 2013

Mar. 26, 2013

File proposed joint claim
constructions
Opening Markman Brief
First Interim Joint Status Report
Reply Markman Brief
Markman Hearing (2012 claims)
First Mediation Deadline
Fact Discovery Deadline
Opening Expert Report Deadline
Rebuttal Expert Report Deadline
Expert Discovery Deadline
Dispositive Motions Deadline
Second Joint Interim Status Report
Second Mediation Deadline
Pretrial Motions (Motions in
Limine/Daubert) Deadline
Pretrial Stipulations and Proposed
Jury Instructions Deadline
Calendar Call
Trial Period

Mar. 24, 2014
Apr. 15, 2014
Apr. 21, 2014

As the table shows, Motorola agreed to Apple’s proposed dates for the opening Markman brief
and the exchange of proposed constructions. The only change Motorola made in its latest
proposed schedule was to suggest that the parties exchange the list of terms needing construction
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earlier, on January 11, 2012. As Apple states in its motion, that date is the only date upon which
the parties have yet to agree.
On October 11, Apple emailed Motorola, appearing to seek more information regarding
Motorola’s proposal. Apple stated that “we don't understand your rationale for moving that
deadline 1 month earlier than your original proposal and on a date prior to the exchange of
rebuttal contentions.” We responded shortly after that to say that we were conferring with our
client, but would respond to your proposal when we could. Nonetheless, Apple filed its motion
that night, October 11.
Apple’s motion on October 11 was premature: the parties were still negotiating, we made it
clear we would respond to your October 11 email, and the first new date that would be added to
the schedule would not be until January 2013. Your motion states that Motorola “inexplicably”
proposed a new date for the exchange of claim terms. But Apple did not wait even a day to hear
Motorola’s explanation.
We moved the date for the Exchange of Terms for Construction to January 11th for two reasons:
(1) to give the sides earlier advance warning of issues what would be in dispute so that they
could start preparing their briefing, and (2) give the sides greater flexibility to meet and confer in
order to possibly reduce the number of terms that need to be briefed. We think this earlier date
makes sense in this case because of there are many patents in the case, and therefore many claim
terms that may be in dispute. Giving the sides more time to work on their briefing and meet and
confer will hopefully streamline the issues that the Court has to decide, and ensure that the
parties’ briefing is as helpful to the Court as possible. Your October 11 email suggests that
Apple opposed the January 11 date because it would be “on a date prior to the exchange of
rebuttal contentions” in response to the parties’ infringement contentions. The parties should be
able to prepare their list of terms for construction at the same time that they are working on their
non-infringement contentions. And the parties can add terms to their lists if necessary in
response to the other side’s non-infringement contentions. There is therefore no reason why
Apple should not be able to agree to Motorola’s proposed January 11 date.
Please confirm that Apple agrees to Exchange Terms for Construction on January 11, 2013, so
that we can submit an agreed order. If Apple insists on forcing the Court to resolve this issue,
please let us know why Apple cannot accept Motorola’s proposal, so that Motorola may address
Apple’s position in its response to Apple’s motion. We need a response by the end of the day
tomorrow, October 17.

Sincerely,
/s/ Gregory Bonifield
Gregory D. Bonifield

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