Motorola Mobility, Inc. v. Microsoft Corporation

Filing 122

Joint MOTION for Leave to File Excess Pages (Claim Construction Briefs) by Microsoft Corporation. (Miner, Curtis)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 1:10-CIV-24063-MORENO

MOTOROLA MOBILITY, INC.,
Plaintiff,
vs.
MICROSOFT CORPORATION,
Defendant.

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JOINT AGREED MOTION FOR LEAVE TO FILE ENLARGED
CLAIM CONSTRUCTION BRIEFS

Motorola Mobility, Inc. (“Motorola Mobility”) and Microsoft Corp. (“Microsoft”)
(collectively, the “Parties”) jointly move this Court for leave to file enlarged briefs. This is a
large and complex patent infringement case that involves 14 separate patents, more than 30
accused products, and collectively more than 150 asserted claims across the patents-in-suit. The
Parties have endeavored to limit the number of claim construction issues presented to the Court,
and therefore, claim construction proceedings are limited to a total of 64 claim terms for
construction by the Court.1 In order to have sufficient minimal space to address all of these
claim terms, the Parties met and conferred and propose the following page limitations for claim
construction briefing on these 64 terms to 95 pages each for simultaneous opening briefs, and 50
pages each for simultaneous response briefs. In further support of their motion, the Parties state:
1.

This action involves claims by both Motorola Mobility and Microsoft for patent

infringement with respect to fourteen (14) patents – seven patents each for Motorola Mobility
and Microsoft.2 The patents-in-suit pertain to a variety of products and associated software
covering a wide range of technologies. Collectively, the Parties assert that more than 30
products infringe the patents-in-suit.3

1

The Parties agreed to limit the number of claim terms to 25 terms per side, plus the addition of
any means-plus-function claim terms that require construction.
2

Motorola has accused Microsoft of infringing U.S. Patent Nos. 5,502,839 (“the „839 patent”),
5,764,899 (“the „899 patent”), 5,784,001 (“the „011 patent”), 6,272,333 (“the „333 patent”),
6,408,176 (“the „176 patent”), 6,757,544 (“the „544 patent”) and 6,983,370 (“the „370 patent”)
(collectively, “the asserted patents”). Compl. at ¶¶ 7-13. In its counterclaim, Microsoft has
alleged that Motorola has infringed seven patents: U.S. Patent Nos. 6,791,536 (“the „536
Patent”), 6,897,853 (“the „853 Patent”), 7,024,214 (“the „214 Patent”), 7,493,130 (“the „130
Patent”), 7,383,460 (“the „460 Patent”), 6,897,904 (“the „904 Patent”), and 6,785,901 (“the „901
Patent”). Counterclaim at ¶¶ 8-14.
3

Motorola Mobility has accused, among other products, Windows Phone 7 with Silverlight,
Windows Live Messenger 2011, Exchange Server 2010 with Unified Messaging, and Bing Maps
and Bing Local for smartphones. Microsoft has accused, among other products, Motorola‟s
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2.

On April 22, 2011, the Parties disclosed the claim terms that they believe require

construction by the Court. On May 6, 2011, the Parties exchanged preliminary claim
constructions. Thereafter, on May 20 and June 3, 2011, the Parties supplemented their
disclosures and proposed claim constructions. By agreement after good faith negotiations, the
Parties have identified a total of 64 separate claim terms that require construction by the Court.
The Parties‟ claim construction briefs may address, inter alia, the language of the patents-in-suit
and other pertinent evidence supporting their proposed constructions.4
3.

On May 21, 2011, the Parties filed a Joint Motion for Clarification of Page Limits

for Claim Construction Briefs (Dkt # 51), stating that the Local Rules do not appear to set a page
limitation on claim construction briefs (See Paragraph 6). The Court subsequently denied the
Parties‟ motion and stated that “clarification is unnecessary.” (Dkt # 66). The Parties
understand the Court‟s order to mean that claim construction briefs are not motions, and thus the
page limit for motions in L.R. 7.1(c)(2) does not apply. However, in the event that the Parties‟
understanding is not correct and to ensure compliance with the Local Rules, out of an abundance
of caution the Parties file this alternative joint motion for leave to file enlarged claim
construction briefs.
4.

If, however, the Court determines that the page limitations set forth in Local Rule

7.1(c)(2) apply, the Parties respectfully request this Court to permit 95 pages for opening briefs
and 50 pages for response briefs. Although the resulting briefs may appear voluminous, the
Parties believe that this expanded number of pages will provide this Court with at least the
Android-based phones (including, but not limited to, the Motorola Droid X, Bravo and Zoom)
and Motorola set-top boxes with DVR functionality.
4

Each Party has retained 11 expert witnesses in this litigation, 22 in total. To date, Motorola has
deposed 42 fact witnesses, while Microsoft has deposed 34 fact witnesses, including inventors of
the patents-in-suit.

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minimum amount of information necessary to resolve disputes concerning the 64 claim terms.
The proposed page limitation for opening briefs allocates less than two pages of discussion for
each disputed claim term (with even less space allotted for response briefs).
WHEREFORE, in the event this Court determines that the page limitations set forth in
Local Rule 7.1(c)(2) apply to claim construction briefs, the Parties respectfully request leave to
file 95 page opening briefs and 50 page response briefs.
Dated: July 21, 2011
By:

/s/ Edward M. Mullins (w/consent) By:

/s/ Curtis Miner

Edward M. Mullins
Hal M. Lucas
Astigarraga Davis Mullins & Grossman, P.A.
701 Brickell Avenue, 16th Floor
Miami, FL 33131
Tel: [phone]
Attorneys for Plaintiff/Counterclaim Defendant
MOTOROLA MOBILITY, INC.

Roberto Martinez
Curtis Miner
Colson Hicks Eidson
255 Alhambra Circle
Coral Gables, FL 33134
Tel: [phone]
Attorneys for Defendant/Counterclaim
Plaintiff MICROSOFT CORPORATION

Jesse J. Jenner
Steven Pepe
Khue V. Hoang
Leslie M. Spencer
Ropes & Gray LLP
1211 Avenue of the Americas
New York, NY 10020
Tel: [phone]

David T. Pritikin
Richard A. Cederoth
Douglas I. Lewis
John W. McBride
Sidley Austin LLP
One South Dearborn
Chicago, IL 60603
Tel: [phone]

Norman H. Beamer
Mark D. Rowland
Gabrielle Higgins
Ropes & Gray LLP
1900 University Avenue, 6th Floor
East Palo Alto, CA 94303
Tel. [phone]

Brian R. Nester
Sidley Austin LLP
1501 K Street, NW
Washington, DC 20005
Tel: [phone]
Paul D. Tripodi II
Sidley Austin LLP
555 West Fifth Street
Los Angeles, CA 90013
Tel: [phone]

Kevin J. Post
Megan F. Raymond
Ropes & Gray LLP
One Metro Center

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700 12th Street, NW, Suite 900
Tel: [phone]

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 21st day of July, 2011, I electronically filed the
foregoing document with the Clerk of the Court, using the CM/ECF system, which will
automatically send email notification of such filing to all counsel who have entered an
appearance in this action.
/s/__Curtis Miner_____________
Curtis Miner
Colson Hicks Eidson
255 Alhambra Circle
Coral Gables, FL 33134
Tel: [phone]
One of the attorneys for
MICROSOFT CORPORATION

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