Lodsys, LLC v. Combay, Inc. et al
Filing
37
NOTICE by Atari Interactive, Inc., Electronic Arts Inc., Quickoffice, Inc., Square Enix Ltd. re 4 MOTION to Intervene (Statement in Support of Apple's Motion to Intervene) (Barsky, Wayne)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
LODSYS, LLC,
CIVIL ACTION NO. 2:11-cv-272-TJW
Plaintiff,
v.
ATARI INTERACTIVE, INC.; COMBAY,
INC.; ELECTRONIC ARTS, INC.;
ICONFACTORY, INC.; ILLUSION LABS
AB; MICHAEL G. KARR D/B/A
SHOVELMATE; QUICK OFFICE, INC.;
ROVIO MOBILE LTD.; RICHARD
SHINDERMAN; SQUARE-ENIX LTD.;
TAKE-TWO INTERACTIVE SOFTWARE,
INC.
Defendants.
STATEMENT IN SUPPORT OF APPLE’S MOTION TO INTERVENE
Defendants Atari Interactive, Inc., Electronic Arts Inc., Quickoffice, Inc., and SquareEnix Ltd. (collectively, the “Supporting Defendants”) respectfully submit this statement in
support of the motion to intervene filed by Apple Inc. (“Apple”) in this matter.
I.
INTRODUCTION
All but one of the undersigned Supporting Defendants were first named as a defendant in
this action in an Amended Complaint filed by plaintiff Lodsys, LLC (“Lodsys”) on July 21,
2011, after the filing of Apple’s motion to intervene.1 And with only one exception, the
Supporting Defendants have not yet been served with process in this action. Given the long
period of time within which a complaint and summons may be served under the Federal Rules of
Civil Procedure, the Supporting Defendants are filing this statement now to ensure that their
voices are heard in connection with the pending motion to intervene.2
The Amended Complaint alleges that certain mobile games made or published by the
Supporting Defendants for the Apple iPhone and iPad platforms infringe U.S. Patent Nos.
7,222,078 and 7,620,565 (collectively, the “Asserted Patents”).
II.
APPLE’S INTERVENTION AS A PARTY IN THIS ACTION IS CRITICAL TO
THE SUPPORTING DEFENDANTS’ ABILITY TO DEFEND THEMSELVES
AGAINST THE CHARGES OF INFRINGEMENT
Apple’s motion to intervene states that Apple has a license to the Asserted Patents, and
that the terms of this license operate to immunize application developers (such as the Supporting
Defendants) from any infringement of the Asserted Patents on account of iPhone or iPad games
such as those made or published by the Supporting Defendants.
If this were proven to be correct (the Supporting Defendants do not yet have access to the
confidential license at issue), the Supporting Defendants would each have a complete defense to
the claims of Lodsys in this matter, regardless of whether the Asserted Patents are valid,
enforceable and infringed (all of which the Supporting Defendants dispute).
1
Of the Supporting Defendants, only Quickoffice was named as a defendant in the initial complaint in this
action.
2
By filing this statement, none of the Supporting Defendants is making a general appearance in this action, nor
are they waiving or compromising in any way any right, claim, position, or defense they may have in response
to the Amended Complaint if and when it is served, including, but not limited, to any defenses based on
deficiencies in service, venue or jurisdiction.
-2-
The Supporting Defendants strongly support Apple’s motion to intervene because the
participation of Apple as a party in this lawsuit is critical to the development of the very
evidence needed to establish what may prove to be a complete defense to the infringement
claims in this action. Apple has the very best information available to anyone on the subject of
the nature and operation of its own licensed technology. Similarly, as one of the two contracting
parties, Apple will have vital information regarding the negotiation, nature and scope of its
license.
Moreover, Apple is uniquely positioned to respond to any claim made by Lodsys that the
scope of its license does not operate to the benefit of Apple’s application developers. To do so,
however, Apple must be a party to this action, not a third-party.
For example, as a party in this action, Apple and its counsel would have access under this
Court’s protective order to all written discovery and testimony on the subject of the background
and scope of its license, as well as the nature and operation of its own, licensed technology.
Were Apple’s participation in this action limited to that of a third-party, Lodsys would be able to
insulate the testimony of Lodsys’s documents and witnesses—as well as the reports of Lodsys’s
experts—from review, critique and response by Apple. This would give Lodsys an unfair
advantage, and substantially prejudice the Supporting Defendants’ ability to develop a full and
fair record in this action because of Apple’s unique knowledge regarding its license and its
licensed technology.
It is for this reason that Apple’s full participation as a party in this action, rather than as a
third-party, is vital to the Supporting Defendants’ ability to defend themselves against the
infringement claims asserted by Lodsys.
In view of the Supporting Defendants’ critical need to rely upon Apple’s assistance in
developing the evidence in this matter, Apple’s willingness to participate as a party in this action,
-3-
and the lack of any cognizable prejudice to Lodsys, the Supporting Defendants respectfully urge
this Court to grant the pending motion to intervene.
Dated: August 9, 2011
Respectfully submitted,
/s/ Wayne M. Barsky
Wayne M. Barsky
California Bar No. 116731
GIBSON, DUNN & CRUTCHER LLP
2029 Century Park East
Los Angeles, CA 90067
Telephone:
(310) 552-8500
Facsimile:
(310) 551-8741
wbarsky@gibsondunn.com
Mark N. Reiter
Texas Bar No. 16759900
GIBSON, DUNN & CRUTCHER LLP
2100 McKinney Avenue, Suite 1100
Dallas, Texas 75201
Telephone: (214) 698-3100
Facsimile: (214) 571-2900
mreiter@gibsondunn.com
ATTORNEYS FOR DEFENDANTS ATARI
INTERACTIVE, INC., ELECTRONIC ARTS
INC., QUICKOFFICE, INC. AND SQUARE
ENIX LTD.
-4-
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this response was served on all counsel who are
deemed to have consented to electronic service. Local Rule CV-5(a)(3)(V). Pursuant to Fed. R.
Civ. P. (5)(d) and Local Rule CV-5(d) and (e), all other counsel of record not deemed to have
consented to electronic service were served with a true and correct copy of the foregoing by
email, on this the 9th day of August 2011.
By:
/s/ Wayne M. Barsky
Wayne M. Barsky
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