Facebook, Inc. v. Phoenix Media/Communications Group, Inc. et al

Filing 83

JOINT STATEMENT re scheduling conference . (Chen, Reuben)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
FACEBOOK, INC,
Plaintiff,

C.A. No. 1:10-cv-11917-DPW

v.
PHOENIX MEDIA/COMMUNICATIONS
GROUP, INC., PEOPLE2PEOPLE GROUP,
INC., TELE-PUBLISHING, INC., AND FNX
BROADCASTING LLC,
Defendants.

JOINT PROPOSED SCHEDULE
Pursuant to the Court’s Orders at the December 14, 2011 hearing, Plaintiff Facebook,
Inc. (“Facebook”) and Defendants Phoenix Media/Communications Group, Inc. (“PMC”),
People2People Group, Inc. (“P2P”), and FNX Broadcasting LLC (“FNX”) (collectively,
“Defendants”) submit the following proposed schedule:
DISCOVERY SCHEDULE PROPOSAL
1.

Initial Infringement Contentions

No later than 60 days after entry of the case schedule, Plaintiff shall serve “Initial
Infringement Contentions,” which shall:
(1)

identify the patent claims that are allegedly infringed;

(2)

identify the accused products and/or methods that allegedly infringe those
claims and specify whether the alleged infringement is literal or falls
under the doctrine of equivalents;

(3)

identify where each element of each claim listed in subpart a, above, is
found in each accused product and/or method listed in subpart b, above;
and

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(4)
(5)

2.

produce all documents supporting Plaintiff’s contentions and identify any
such supporting documents produced by the accused infringer.
Such disclosures may be amended and supplemented up to 30 days before
the date of the Claim Construction Hearing. After that time, such
disclosures may be amended or supplemented only pursuant to ¶ 3(f) or by
leave of court, for good cause shown.

Initial Non-Infringement, Invalidity, and Unenforceability Contentions

No later than 60 days after service of Plaintiff’s Initial Infringement Contentions,
Defendants shall serve “Initial Non-Infringement, Invalidity, and Unenforceability Contentions,”
which shall:
(1)

identify as to each element of each claim identified as allegedly infringed,
whether such element is present in the accused products and/or services, or
whether such element is absent. In the latter regard, Defendants shall set
forth the basis for their contention that the element is absent, including
identification of documents supporting such contention. As to the doctrine
of equivalents, Defendants shall state their contentions concerning nonequivalents;

(2)

produce documents sufficient to show operation of the accused products
and/or methods identified in Plaintiff’s Initial Infringement Contentions;

(3)

identify prior art that anticipates or renders obvious the identified patent
claims in question and, for each such prior art reference, specify whether it
anticipates or is relevant to obviousness;

(4)

specify any other grounds for invalidity, such as indefiniteness, best
mode, enablement, or written description. If applicable, Defendants shall
also specify any other grounds for invalidity or unenforceability, such as
inequitable conduct; and

(5)

identify documents supporting Defendants’ invalidity or unenforceability
defenses.

(6)

Such disclosures may be amended and supplemented up to 30 days before
the date of the Claim Construction Hearing. After that time, such
disclosures may be amended or supplemented only pursuant to ¶ 3(f) or
by leave of court, for good cause shown, except that, if the patentee
amends or supplements its preliminary infringement disclosures, the
accused infringer may likewise amend or supplement its disclosures, but
only to the extent necessary to directly respond to the patentee’s
amendments or supplements, within 30 days of service of the amended or
supplemented infringement disclosures.
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3.

Claim Construction Proceedings
(a)

Exchange of Proposed Claim Terms for Construction and Proposed
Constructions

No later than 120 days after service of Defendants’ Initial Non-Infringement, Invalidity,
and Unenforceability Contentions, the parties shall simultaneously exchange a list of claim terms
to be construed and proposed constructions. Service of the proposed constructions shall be
without prejudice to amend the terms to be construed or the constructions.
(b)

Opening Claim Construction Briefs

No later than 30 days after the simultaneous exchange of proposed constructions, the
parties shall file and serve their opening claim construction briefs.
Each brief shall contain a list of claim terms construed, the party’s proposed construction
of each term, and evidence and argument supporting each construction. Absent leave of court,
opening claim construction briefs shall be limited to 25 pages, double spaced, of at least 12-point
Times New Roman font or the equivalent.
(c)

Responsive Briefs

No later than 30 days after filing and service of opening claim construction briefs, the
parties shall file and serve responsive briefs. Absent leave of court, responsive briefs shall be
limited to 15 pages, double spaced, of at least 12-point Times New Roman font or the equivalent.
(d)

Joint Claim Construction and Prehearing Statement

No later than 30 days following the exchange and filing of responsive briefs, the parties
shall finalize the list of disputed terms for the Court to construe.
The parties shall prepare and file a Joint Claim Construction and Prehearing Statement
that identifies both agreed and disputed terms.
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(1)

The joint statement shall note the anticipated length of time necessary for
the claim construction hearing and whether any party proposes to call
witnesses, including a statement that such extrinsic evidence does not
conflict with intrinsic evidence.

(2)

The joint statement shall also indicate whether the parties will present
tutorials on the relevant technology, the form of such tutorials, and the
timing for such tutorials in relation to the claim construction hearing. If
the parties plan to provide tutorials in the form of briefs, declarations,
computer animations, slide presentations, or other media, the parties shall
exchange such materials 2 days before the claim construction hearing. In
the alternative, the parties may present tutorials through presentations by
attorneys or experts at the claim construction hearing.

(3)

The joint statement shall include a proposed order in which parties will
present their arguments at the claim construction hearing, which may be
term-by-term or party-by-party, depending on the issues in the case.

(4)

The joint statement shall limit the number of claim terms to be construed
and shall prioritize them in order of importance.

(5)

The joint statement shall include a joint claim construction chart, noting
each party’s proposed construction of each term, and supporting evidence.

(e)

Claim Construction Hearing

A Claim Construction Hearing will be held according to the Court’s schedule after the
filing of the Joint Claim Construction Statement.
(f)

Amendments to Contentions

Within 30 days after the Court’s Claim Construction Order, the Parties may amend their
contentions in light of the Order or withdraw any contentions. If either party makes such an
amendment, the opposing party will have 14 days to amend its contentions based on the other
side’s amendment.
4.

Fact Discovery Deadline

All fact discovery shall be completed 60 days following the Court’s Claim Construction
Order.
5.

Expert Discovery
(1)

Parties shall disclose the name, address, and curriculum vitae of all expert
witnesses opining on issues in which they bear the burden of proof no later
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than 30 days after the Court’s Claim Construction Order.
(2)

(3)

Reports from retained experts under Federal Rule of Civil Procedure
26(a)(2) will be due from the party bearing the burden on a particular issue
30 days after the close of fact discovery with rebuttal reports due 60 days
thereafter. Supplementations under Federal Rule of Civil Procedure 26(e)
are due no later than 30 days before trial.

(4)
6.

The name, address, and curriculum vitae of all rebuttal expert witnesses
shall be disclosed by no later than 90 days after the Court’s Claim
Construction Order.

Any expert depositions are to be completed 45 days after rebuttal reports
are due.

Motions

Discovery motions addressed to fact discovery issues shall be filed no later than 30 days
after the close of fact discovery. Motions for summary judgment shall be filed no later than 30
days after the close of expert discovery.
FACEBOOK, INC.,

PHOENIX MEDIA/COMMUNICATIONS GROUP,
INC.,
PEOPLE2PEOPLE GROUP, INC. and
FNX BROADCASTING LLC

By its attorneys,

By their attorneys,

/s/ Reuben H. Chen
Heidi L. Keefe (pro hac vice)
[e-mail]
Mark R. Weinstein (pro hac vice)
[e-mail]
Reuben H. Chen (pro hac vice)
[e-mail]
Daniel J. Knauss (pro hac vice)
[e-mail]
COOLEY LLP
3175 Hanover Street
Palo Alto, CA 94304-1130
Telephone: [phone]; Facsimile: (650)
857-0663

/s/ T. Christopher Donnelly (with permission)
T. Christopher Donnelly (BBO# 129930)
Donnelly, Conroy & Gelhaar, LLP
One Beacon Street, 33rd Floor
Boston, Massachusetts 02108
[phone]

OF COUNSEL:
Donald K. Stern (BBO No. 479420)
[e-mail]
COOLEY LLP
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500 Boylston Street
Boston, MA 02116
Telephone: [phone]; Facsimile: (617)
937-2400
Dated: January 9, 2012

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CERTIFICATE OF SERVICE
I, Reuben H. Chen, hereby certify that pursuant to Local Rule 5.4(C), this document has
been filed through the ECF system and will be sent electronically to the registered participants as
identified on the Notice of Electronic Filing (NEF). For those parties indicated as non-registered
participants, if any, a paper copy will be sent by facsimile and/or U.S. First Class Mail on
January 9, 2012.
/s/ Reuben H. Chen
Reuben H. Chen

997461/HN

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