Performance Pricing, Inc. v. Google Inc. et al

Filing 125

TRANSCRIPT of Status Conferences held on 4/7/08 before Judges Leonard Davis and John Love. Court Reporter: Shea Sloan, [e-mail]. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 8/7/2008. Redacted Transcript Deadline set for 8/18/2008. Release of Transcript Restriction set for 10/15/2008. 13 pages. See 87 (sms, )

Performance Pricing, Inc. v. Google Inc. et al

Doc. 125

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER AND MARSHALL DIVISIONS IP INNOVATION, LLC, ET AL -vsRED HAT, INC., ET AL SWIT ELECTRONICS CO. -vsLITEPANELS, LLC TRENT WEST -vsTARGET CORPORATION DR. PAUL TEIRSTEIN -vsAGA MEDICAL CORPORATION PERFORMANCE PRICING, INC. -vsGOOGLE, INC., ET AL SAXON INNOVATIONS, LLC -vsNOKIA CORPORATION DIGITAL REG OF TEXAS, LLC -vsHUSTLER.COM, ET AL ) ) DOCKET ) ***** ) ) DOCKET ) ***** ) ) DOCKET ) ***** ) ) DOCKET ) ***** ) ) DOCKET ) ***** ) ) DOCKET ) ***** ) ) DOCKET ) NO. 2:07cv447

NO. 6:07cv480

NO. 6:07cv492

NO. 6:08cv14

NO. 2:07cv432

NO. 6:07cv490

NO. 6:07cv467

TRANSCRIPT OF STATUS CONFERENCE CASES BEFORE THE HONORABLE LEONARD DAVIS, UNITED STATES DISTRICT JUDGE AND BEFORE THE HONORABLE JOHN D. LOVE, UNITED STATES MAGISTRATE JUDGE ****** HEARING HELD APRIL 7, 2008 AT 1:30 P.M. IN TYLER, TEXAS ****** APPEARANCES (SEE ATTORNEY SIGN IN SHEETS ATTACHED AND DOCKETED IN EACH OF THE ABOVE-CAPTIONED CASES) COURT REPORTER: MS. SHEA SLOAN [e-mail]

Proceedings taken by Machine Stenotype; transcript was produced by a Computer.

Dockets.Justia.com

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. MR. GEISZLER: Steven Geiszler for defendants. Thank you. Hat. MR. WARD: Johnny Ward for the plaintiffs, Your PROCEEDINGS HON. JUDGE DAVIS: All right. Please be seated.

We are here for a Status Conference.

I'm going to call each case, and I am just going to ask you just for your announcements, just who you are and who you represent at this point. And then I will have a few comments,

and then we will go into the status. So the first case, 2:07cv447, IP Innovation v. Red

HON. JUDGE DAVIS:

6:07cv480, Swit Electronics v. Litepanels. MR. CAULEY: defendants. MS. DeRIEUX: Elizabeth DeRieux for Litepanels. All right. Now, is Swit the Richard Cauley and Travis Bardon for

HON. JUDGE DAVIS:

plaintiff or the defendant in this case? MR. CAULEY: I believe, Your Honor, actually we are

the plaintiff, and I believe the consolidated action that you are proceeding -HON. JUDGE DAVIS: It is the same patents and

everything as the other Litepanels case? MR. CAULEY: Same patents, Your Honor, so we are

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Media. Yahoo. MR. MALONEY: Collin Maloney here for IAC Search & Honor. defendants in their action filed here, and we were the plaintiff in the action filed in California that was transferred and consolidated. HON. JUDGE DAVIS: Okay. Very good. Thank you.

6:07cv492, Trent West v. Target Corporation. MS. DeVASTO: Diane DeVasto for Trent West, Your

Ready to proceed. MR. YARBROUGH: Your Honor, Trey Yarbrough and

Debbie Gunter on behalf of defendant, Target Corporation. HON. JUDGE DAVIS: All right. Medical Corp. MR. ALLEN: MR. PICKETT: Vincent Allen for the plaintiff. John Pickett, together with Ray Kurz Very good. Anyone else?

6:08cv14, Dr. Paul Teirstein v. AGA

and Robert Weinschenk for the defendant, Your Honor. HON. JUDGE DAVIS: Very good. Thank you.

2:07cv432, Performance Pricing, Inc. v. Google. MR. BUNT: Chris Bunt and Elizabeth DeRieux here on We are ready.

behalf of Performance Pricing. MR. COFFEY:

Your Honor, Brad Coffey here for the

defendants, Google and AOL. MR. BUFE: Your Honor, John Bufe here for defendant

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for LG. entity. MR. CARTER: Good afternoon, Your Honor, Winn Carter Computer. Inc. MR. CRAFT: Brian Craft on behalf of High Tech Inc. MR. WILCOX: entities, Your Honor. MR. GUARAGNA: Your Honor, John Guaragna for Palm, Melvin Wilcox on behalf of the Sharp MR. TINDEL: behalf of A9.com. MR. FINDLAY: Your Honor, Eric Findlay and Richard Your Honor, Andy Tindel. I am here on

Cederoth here on behalf of Microsoft. HON. JUDGE DAVIS: Thank you.

6:07cv490, Saxon Innovations v. Nokia Corp. MR. WARD: Johnny Ward for the plaintiff. Your Honor, Allen Gardner and Matt

MR. GARDNER:

Brigham here for Nintendo. MR. CHASSMAN: Your Honor, Pete Chassman and Gil

Gillam on behalf of Research in Motion Corporation and Research in Motion, Ltd. MS. DeVASTO: Diane DeVasto on behalf of Nokia Corp,

We are ready. HON. JUDGE DAVIS: MR. ALBRITTON: Thank you.

Eric Albritton on behalf of the Sony

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HON. JUDGE DAVIS: Okay. Thank you.

6:07cv467, Digital Register -- I guess that is -- of Texas v. Hustler. MR. WARD: Johnny Ward for the plaintiff. Eric Albritton for Apple. Thad Heartfield for Audible, Inc.

MR. ALBRITTON: MR. HEARTFIELD: MR. MALONEY: Playboy, Your Honor. MR. CHASSMAN:

Collin Maloney for Blockbuster and

Pete Chassman and James Tidwell on

behalf of LFP Internet Group, LLC. MR. WILCOX: entities, Your Honor. MR. FINDLAY: Eric Findlay and Joe Micallef on Melvin Wilcox on behalf of the Sony

behalf of Microsoft, Your Honor. HON. JUDGE DAVIS: get into it later. What's that case about? We'll

I'm going to keep that one. No comment. All right. I think that y'all

HON. JUDGE LOVE: HON. JUDGE DAVIS:

know why we are here, in an effort to try to move our docket. We have got three goals for the Court; try to be user-friendly, correct on the law, and timely in our dispositions. We are sort of lagging behind on timely, so we

are soliciting some of the Bar's help to try to keep our cases moving on a 24-month trial schedule on the IP docket and get those matters resolved, hopefully, economically and promptly

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 consent. HON. JUDGE DAVIS: Electronics v. Litepanels. an affiliated case. MS. DeRIEUX: Thank you, Your Honor. Were y'all going to consent? All right. 6:07cv480, Swit for all of the parties. But we have limited resources; and to most effectively utilize those, we are having this early Status Conference in an effort to help you and your clients make an early determination who will try your case, myself or Judge Love so that everybody is on the same page rather than becoming a moving target of whether you are going to consent or not. So what I am going to do, is I am going to call each of your cases again, and we will ask you to tell me whether you consent to trial before Judge Love or not. And for those And I hope

of you who do, you will have my undying gratitude. we can get several consents during this exercise.

And so with that, let me go back through the cases, and I will call them in no particular order. one IP Innovation, LLC v. Red Hat. MR. WARD: The plaintiffs consent. Your Honor, the defendants do not But the first

MR. GEISZLER:

That will stay with me since it is

HON. JUDGE DAVIS: MR. CAULEY:

Oh, yes, we consent, Your Honor.

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 consent. here. consent? MS. DeRIEUX: It is our position that it ought to HON. JUDGE DAVIS: Okay. Ms. DeRieux, do you

stay with you, Your Honor. HON. JUDGE DAVIS: Okay. We'll look at that since

it is already here and we have got some time invested in it. We will probably keep that one. 6:07cv492, Trent West v. Target Corp. MS. DeVASTO: have Trent West. HON. JUDGE DAVIS: MR. YARBROUGH: All right. Your Honor, we do not consent. We

Do I need to speak, Your Honor?

Defendant Target Corporation does not consent. HON. JUDGE DAVIS: All right. Hope we get on a roll

6:08cv14, Dr. Teirstein v. AGA Medical Corp. MR. ALLEN: MR. PICKETT: The plaintiff consents, Your Honor. Your Honor, respectfully we would not

We would like to consider this particular inquiry of

the Court given the fact that we were not under the impression that the plaintiff was going to consent until the first thing this morning. We have just not had a chance to discuss that

with our clients and to go to obtain that type of authority. We would just like to advise the Court some time in the future about that. HON. JUDGE DAVIS: Well, we issued this status

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 order -- I thought it was pretty clear. MR. PICKETT: Yes, Your Honor. But you have not had meaningful

HON. JUDGE DAVIS: discussions with your client? MR. PICKETT:

No, we have not, Your Honor, because

the early-on discussions that we had during the meet-and-confer process with the plaintiff, there was indication they were not going to consent. So as a result,

open and full discussion with our client did not take place. I apologize. HON. JUDGE DAVIS: contact your client today? MR. WEINSCHENK: Your Honor, if I may, up until this We Have you made an effort to

morning, as we mentioned, we agreed not to consent.

understood the plaintiff not to consent, so we need to -- we were just advised this morning about the fact that they had changed their position. with Local Counsel -HON. JUDGE DAVIS: Why don't y'all step out and see We are still talking and discussing

if you can get your client on the phone and come back and report to me. MR. ALLEN: Thank you very much. All right. Saxon Innovations v.

HON. JUDGE DAVIS: Nokia Corporation. MR. WARD:

The plaintiff does not consent, Your

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. MR. HEARTFIELD: MR. CHASSMAN: MR. FINDLAY: MR. WILCOX: Audible consents. LFP Internet Group, LLC consents. Microsoft consents, Your Honor. Sony does not consent, Your Honor. Apple consents. Blockbuster and Playboy both consent, Honor. MR. GUARAGNA: MS. DeVASTO: MR. WILCOX: Palm consents, Your Honor. Nokia consents. Sharp does not consent. Samsung consents, Your Honor. Honor. MR. GARDNER: MR. CHASSMAN: Nintendo consents, Your Honor. Research in motion consents, Your

MR. ALBRITTON: MR. CRAFT: MR. CARTER:

High Tech Computer does not consent. LG consents. Okay. 6:07cv467, Digital

HON. JUDGE DAVIS:

Register of Texas v. Hustler.com. MR. WARD: The plaintiff does not consent, Your

MR. ALBRITTON: MR. MALONEY: Your Honor.

HON. JUDGE DAVIS: a short recess.

All right.

We are going to take

Did I call Performance Pricing 2:07cv432? No, Your Honor. I'm sorry. I missed that one.

MR. BUNT:

HON. JUDGE DAVIS:

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 consent. HON. JUDGE DAVIS: Okay. All right. Well, I don't MR. BUNT: I could use as much gratitude as I can

get from Your Honor, so we will gladly consent. HON. JUDGE DAVIS: MR. BUFE: Thank you.

Your Honor, defendant Yahoo consents. Wonderful.

HON. JUDGE DAVIS: MR. COFFEY:

Your Honor, defendants Google and AOL,

unfortunately, do not consent. MR. MALONEY: MR. TINDEL: MR. FINDLAY: Your Honor, IAC also does not consent. A9 does not consent, Your Honor. Your Honor, Microsoft does not

know what this is going to do to us, but we are going to take a brief recess about ten minutes and review the schedule and come back and call the cases. (Recess was taken at this time.) HON. JUDGE DAVIS: All right. MR. PICKETT: Please be seated.

AGA Medical, what did we find out? Your Honor, we would respectfully not

consent to Magistrate Judge Love presiding. HON. JUDGE DAVIS: Very well.

Judge Love, if you would read the settings so everyone can take note. HON. JUDGE LOVE: All right. First of all, IP

Innovation 2:07cv447, your Markman date before Judge Davis is

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 settings. Hustler. Google. July 9th of '09. Davis. Trial date April 6th of '10 before Judge

And all of these, obviously, will be before Judge

Davis -- well, actually -- I will go ahead and state that. Let me go to the next case. 6:07cv480, Swit

Electronics v. Litepanels, your Markman date is before Judge Davis, September 3rd of '09; trial date, May 3rd of '10. The next case, 6:07cv492, Trent West v. Target Corp. Your Markman date before Judge Davis, September 10th, '09; trial date, May 3rd, '10. The next case, 6:08cv14, Teirstein v. AGA Medical, Markman date before me will be August 20th of '09; trial date February 1st of '10. The next case, 2:07cv432, Performance Pricing v. Your Markman date before me is June 18th, 2009;

trial date before Judge Davis, April 6th, 2010. 6:07cv490, Saxon v. Nokia. Markman date before me

June 25th, '09; trial date May 3rd of '10 before Judge Davis. The next case, 6:07cv467, Digital Register v. The Markman date before Judge Davis July 2nd of '09;

trial date before Judge Davis, February 1st of 2010. HON. JUDGE DAVIS: All right. Everyone has those

I would encourage the three cases that Judge Love He is

is handling the Markman in, you can still consent.

going to be handling everything right up until putting a jury in the box, so I would encourage you to continue to talk to

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 today. your clients and see if you might be interested in consenting in those cases. He, of course, will be a lot more familiar

with the cases than I am by the time those cases reach trial. But if you elect not to, you have your trial dates for me. If

you do decide to consent in any of those cases, contact Judge Love and he can give you a trial date that is fairly close to what I was able to give you on those settings. Does anyone have any questions? We will be issuing

an order in each of these cases today giving you the pertinent dates for you to plug into your Docket Control Order and Scheduling Order. And, hopefully, you can meet and confer, if

you have not already done so, and submit those to us in agreed format. If you can't agree, as stated in the order, indicate

your differences and submit it to us by the date called for and we will make a decision and get that in and get you rolling. This order we will be entering will also tell you

what the exact date is to start triggering all of your other dates under the Docket Control Order. the order and you can calculate it. I think it is stated in We are going to issue

that order so there won't be any confusion among any of the attorneys. All right. Well, y'all were not a lot of help

I hope by the next time we get together that y'all can

get a little more agreement, but I hope we have been helpful to you. So any questions from anybody? All right. We will

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /s/ SHEA SLOAN, CSR, RPR OFFICIAL COURT REPORTER STATE OF TEXAS NO. 3081 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. CERTIFICATION see you down the road. (End of hearing.) Good luck.