LendingTree, LLC v. Zillow, Inc. et al

Filing 209

ORDER, (Hearing resumes 6/27/2012 02:00 PM in Courtroom 1, 401 W Trade St, Charlotte, NC 28202 before District Judge Frank D. Whitney.), Motions terminated: 204 MOTION for Summary Judgment on Invalidity Under 35 USC Section 101, 207 MOTION for Leave to File Excess Pages Defendants' Motion to Exceed Word Limitation.. Signed by District Judge Frank D. Whitney on 6/4/2012. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:10-cv-00439-W
LENDINGTREE, LLC, a Delaware limited
liability company,
Plaintiff,
vs.
ZILLOW, INC., a Washington corporation;
NEXTAG, INC., a Delaware corporation;
QUINSTREET, INC., a Delaware
corporation; QUINSTREET MEDIA, INC.,
a Nevada corporation; and ADCHEMY,
INC., a Delaware corporation;
Defendants.

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ORDER
and
NOTICE OF HEARING

THIS MATTER is before the Court upon the filing of “Defendants’ Motion for Summary
Judgment on Invalidity as to U.S. Patents 6,385,594 and 6,611,816” (Doc. No. 204), as well as the
responsive pleadings thereto (Docs. Nos. 206, 208). Also before the Court is Defendants’ Motion
for Leave to File Excess Pages (Doc. No. 207).
Following the first portion of the claim construction hearing in this matter, defense counsel
requested permission to file with the Court a motion that dealt with whether the patents at issue in
this case constituted “patent-eligible subject matter,” which counsel clarified differed from subject
matter jurisdiction and likened to “personal jurisdiction.” Counsel indicated that such a motion
relied on precedent from the case of Bilski v. Kappos, __ U.S. __, 130 S.Ct. 3218 (2010) (“Bilski
II”); concerned “personal jurisdiction” issues; and would be appropriate to resolve prior to discovery
and prior to the time for the normal dispositive motions deadline. The Court stated it would permit
such a filing and provided counsel with time limits, as well as word count limits, to govern the

motion and responses.
The motion is now ripe, and the Court has reviewed the filings. The Court finds that the
motion does not in fact deal with personal jurisdiction, but it is instead a dispositive motion
concerning issues of fact that need not be resolved prematurely. To explain, the Court understood
the motion – as anticipated by counsel at the claim construction hearing – to concern recent Supreme
Court precedent affecting this Court’s jurisdiction. Defense counsel plainly stated, “It [the motion]
is not subject matter jurisdiction. It’s personal jurisdiction.” Accordingly, the Court, without
deciding Rule 12 waiver issues, indicated it was willing to entertain the motion in advance of
discovery and outside of the normal briefing schedule and word limits for dispositive motions. The
motion at bar, however, neither mentions personal jurisdiction nor relies on Rule 12 of the Federal
Rules of Civil Procedure. Instead, the instant motion clearly seeks relief under Rule 56 standards
for summary judgment and requests a ruling on patent invalidity. Quite simply, this is premature.
The primary cases upon which Defendants rely do not suggest otherwise. Neither Bilski II nor the
Dealertrack, Inc. v. Huber, 674 F.3d 1315, (C.A.Fed 2012), case indicate that such a ruling is
necessary prior to resolving claim construction or in advance of the normal schedule for dispositive
motions. In fact, the Dealertrack case addressed both claim construction and patent invalidity, thus
indicating the appropriateness of resolving claim construction prior to or at least simultaneously with
patent eligibility. For these reasons the Court strikes the motion and responsive pleadings. The
Court will allow the parties to raise this issues at the appropriate time for summary judgment.
IT IS THEREFORE ORDERED that the Court hereby STRIKES Defendants’ Motion for
Summary Judgment (Doc. No. 204), the response thereto (Doc. No. 206), and the reply thereto (Doc.
No. 208). Should the parties wish to raise those arguments at the appropriate time for summary
judgment, they should rebrief them in accordance with this Court’s standing orders governing word

limits. Put another way, the parties may not simply refer to and incorporate by reference these nowstricken pleadings in order to circumvent the word-count limit. Defendants’ Motion for Leave to
File Excess Pages (Doc. No. 207) is DENIED AS MOOT.
FURTHER, the parties should TAKE NOTICE that the Court will resume its hearing to
address the remaining claim construction issues and that such hearing will take place before the
undersigned at 2:00 p.m. on Wednesday, June 27, 2012, in Courtroom #1 at the Charles R. Jonas
Building, 401 W. Trade Street, Charlotte, North Carolina, 28202.
IT IS SO ORDERED.
Signed: June 4, 2012