Rockstar Consortium US LP et al v. Google Inc

Filing 124

SUR-REPLY to Reply to Response to Motion re 105 Opposed MOTION for the Court to Enter its [Model] Order Focusing Patent Claims and Prior Art to Reduce Costs, to Limit the Number of Asserted Claims, and to Extend the Deadline for the Parties to Comply with P.R. 4-2 filed by NetStar Technologies LLC, Rockstar Consortium US LP. (Lahad, John)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ROCKSTAR CONSORTIUM US LP AND NETSTAR TECHNOLOGIES LLC, Civil Action No. 2:13-cv-893 Plaintiffs, v. JURY TRIAL DEMANDED GOOGLE INC., Defendant. PLAINTIFFS’ SUR-REPLY IN OPPOSITION TO GOOGLE’S MOTION FOR THE COURT TO ENTER ITS [MODEL] ORDER FOCUSING PATENT CLAIMS AND PRIOR ART TO REDUCE COSTS, TO LIMIT THE NUMBER OF ASSERTED CLAIMS, AND TO EXTEND THE DEADLINE FOR THE PARTIES TO COMPLY WITH P.R. 4-2 Plaintiffs Rockstar Consortium US LP and Netstar Technologies LLC (“Rockstar”) submit this sur-reply to raise three points, but otherwise rest on their prior briefing. First, Google argues that by demanding that Google identify a reasonable number of obviousness combinations, Rockstar is “seeking to foreclose Google from having the very ‘flexibility to develop the appropriate combinations as discovery proceeds’ that the Model Order contemplates.” (Doc. 119 at 3). The “flexibility” afforded by the Model Order must be reconciled with the notice of function of the Patent Rules, which as described in Rockstar’s Motion to Strike, Doc. 117, is absent from Google’s purported obviousness disclosure. Google’s position effectively amounts to having the flexibility to use whatever art it wants, however it wants to use it, and whenever it wants to use it. 1 Second, Google’s Reply appears to belittle Rockstar’s complaint regarding the outrageous number of potential obviousness combinations. But as several courts in this District have held, asserting hundreds or thousands of potential obviousness combinations does not provide the notice required by the Local Patent Rules. See LML Patent Corp. v. J.P. Morgan Chase & Co., No. 2:08-cv-448, 2011 WL 5158285, at *4 (E.D. Tex. Aug. 11, 2011); Realtime Data, LLC v. Packeteer, Inc., No. 6:08-cv-144, 2009 WL 4782062, at *2 (E.D. Tex. Dec. 8, 2009). Finally, nothing supports Google’s argument that a reduction in claims results in a reduction in the number of obviousness combinations. Google still may – and likely will – assert the same prior art references against 32 claims as it does against 141 claims. And Google still may – and likely will – employ the same combined-in-any-way-we-want approach to obviousness after a reduction in claims. Google refers to its offer to limit the universe of references to 30. (Doc. 119 at n.2). Tellingly, Google does not say that it will limit the universe of combinations, which is the real dispute between the parties. Rockstar should not be forced to endure discovery in the shadow of thousands of potential prior art combinations. That is entire point of the Patent Rules and the Model Order. Entry of the Model Order should not come at the price of Rockstar having to surrender its right to notice of specific obviousness combinations as required by the Local Rules. That is what Google is attempting to do. Thus, Rockstar asks that the Court deny Google’s Motion. 2 DATED: August 11, 2014 Respectfully submitted, By: /s/ John P. Lahad Max L. Tribble, Jr. – Lead Counsel State Bar No. 20213950 Alexander L. Kaplan, State Bar No. 24046185 John P. Lahad, State Bar No. 24068095 Shawn Blackburn, State Bar No. 24089989 SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666 Justin A. Nelson, State Bar No. 24034766 Parker C. Folse, III, WA State Bar No. 24895 Kristin Malone, WA State Bar No. 46251 SUSMAN GODFREY L.L.P. 1201 Third Ave, Suite 3800 Seattle, Washington 98101 Telephone: (206) 516-3880 Facsimile: (206) 516-3883 Amanda K. Bonn, CA State Bar No. 270891 SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars, Suite 950 Los Angeles, CA 90067-6029 Telephone: (310) 789-3100 Facsimile: (310) 789-3150 T. John Ward, Jr., State Bar No. 00794818 Claire Abernathy Henry, State Bar No. 24053063 WARD & SMITH LAW FIRM P.O. Box 1231 Longview, TX 75606-1231 Telephone: (903) 757-6400 Facsimile: (903) 757-2323 3 S. Calvin Capshaw, State Bar No. 03783900 Elizabeth L. DeRieux, State Bar No. 05770585 D. Jeffrey Rambin, State Bar No. 00791478 CAPSHAW DERIEUX, LLP 114 E. Commerce Ave. Gladewater, TX 75647 Telephone: (903) 236-9800 Facsimile: (903) 236-8787 Attorneys for Rockstar Consortium US LP and NetStar Technologies LLC CERTIFICATE OF SERVICE I hereby certify that all counsel of record, who are deemed to have consented to electronic service are being served this 11th day of August, 2014 with a copy of this document via the Court’s CM/ECF system per Local Rule CD-5(a)(3). /s/ John P. Lahad John P. Lahad 4

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