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)

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EXHIBIT 14 quinn emanuel trial lawyers | new york 51 Madison Avenue, 22nd Floor, New York, New York 10010-1601 | TEL: (212) 849-7000 FAX: (212) 849-7100 WRITER'S DIRECT DIAL NO. (212) 849-7494 WRITER'S INTERNET ADDRESS 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 LOS ANGELES | 865 South Figueroa Street, 10th Floor, Los Angeles, California 90017-2543 | TEL (213) 443-3000 SAN FRANCISCO | 50 California Street, 22nd Floor, San Francisco, California 94111-4788 | TEL (415) 875-6600 FAX (213) FAX (415) 443-3100 875-6700 SILICON VALLEY | CHICAGO | 555 Twin Dolphin Drive, 5th Floor, Redwood Shores, California 94065-2139 | TEL (650) 801-5000 FAX (650) 801-5100 500 W. Madison Street, Suite 2450, Chicago, Illinois 60661-2510 | TEL (312) 705-7400 FAX (312) 705-7401 WASHINGTON , DC | LONDON | TOKYO | 1299 Pennsylvania Avenue NW, Suite 825, Washington, District of Columbia 20004-2400 | TEL (202) 538-8000 16 Old Bailey, London EC4M 7EG, United Kingdom | TEL +44 20 7653 2000 FAX +44 20 7653 2100 NBF Hibiya Building, 25F, 1-1-7, Uchisaiwai-cho, Chiyoda-ku, Tokyo 100-0011, Japan | TEL +81 3 5510 1711 MANNHEIM | FAX +81 Mollstraße 42, 68165 Mannheim, Germany | TEL +49 621 43298 6000 FAX +49 621 43298 6100 MOSCOW | Paveletskaya Plaza, Paveletskaya Square, 2/3, 115054 Moscow, Russia | TEL +7 499 277 1000 FAX +7 499 277 1001 HAMBURG | An der Alster 3, 20099 Hamburg, Germany | TEL +49 40 89728 7000 FAX +49 40 89728 7100 FAX (202) 3 5510 1712 538-8100 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 2 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 3

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