WI-LAN Inc. v. Alcatel-Lucent USA Inc. et al

Filing 319

RESPONSE to Motion re 306 MOTION to Sever and Memorandum In Support filed by WI-LAN Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Text of Proposed Order)(Weaver, David)

EXHIBIT B

Ajeet P. Pai [e-mail]
Tel [phone] Fax [phone]

January 24, 2013

Via Email
Martin Bader
Sheppard, Mullin, Richter & Hampton LLP
12275 El Camino Real, Suite 200
San Diego, CA 92130-2006
[e-mail]
Re:

Wi-LAN v. Alcatel-Lucent USA et al. (10-cv-521) (E.D. Tex.)

Dear Martin:
I write regarding HTC’s letter dated January 15, 2013, concerning HTC’s proposed
motion to sever Wi-LAN’s claims against HTC for separate trial. As an initial matter, HTC’s
suggestion in that letter that recent case law compels severance of the parties in this case is
not correct. Indeed, the Eastern District of Texas, following the guidance set forth in the In
re EMC Corp. case cited in HTC’s letter, recently denied a motion to sever when accused
products from multiple defendants complied with the same technical standard and shared
commonly sourced components. Negotiated Data Solutions, Inc. v. Apple, Inc., No. 2:11–
CV–390–JRG, 2012 WL 6161785 (E.D. Tex., Dec. 11, 2012). As one example of why
severance is inappropriate in this matter, Sony and HTC use identical processors from
Qualcomm for most of their accused products. In addition, as you know, all of the accused
products at issue in this case comply with the 3GPP specifications and are designed to
interoperate. Moreover, even if the Court were to agree with HTC’s arguments regarding
severance, it would still be well within the Court’s authority under Rule 42 to consolidate the
severed cases for trial, as the Federal Circuit pointed out in In re EMC Corp. See In re EMC
Corp., 677 F.3d 1351, 1360 (Fed. Cir. 2012).
Although severance is not required in this matter, Wi-LAN wishes to resolve the
parties’ disputes expeditiously and in the manner most efficient for the Court and the parties.
Accordingly, Wi-LAN is willing to consider joining a motion to sever its infringement and
damages issues against the defendants as part of a workable trial plan, as follows:

Vinson & Elkins LLP Attorneys at Law

2801 Via Fortuna, Suite 100

Abu Dhabi Austin Beijing Dallas Dubai Hong Kong Houston London Moscow

Austin, TX 78746-7568

New York Palo Alto Riyadh San Francisco Shanghai Tokyo Washington

Tel [phone] Fax [phone] www.velaw.com

Martin Bader

January 24, 2013 Page 2

As you are aware, all Defendants share a single invalidity expert and have submitted
a single expert report concerning invalidity. Because multiple, duplicative trials on validity
would waste the Court’s resources, increase the inconvenience to third-party witnesses,
prejudice Wi-LAN, and generally result in inefficiency, Wi-LAN will agree to a single trial
on invalidity, with Wi-LAN’s infringement and damages claims against Defendants severed
for separate trials to follow immediately follow. Because common questions of fact and law
will obviously be raised with regard to HTC and Sony Mobile, both handset manufacturers,
those parties would remain together for a second trial on infringement and damages
following the trial on validity. A final trial concerning infringement and damages would
follow, if necessary, for Ericsson and Alcatel-Lucent, both of whom manufacture base
stations.
Please let me know if the above trial plan is acceptable to HTC and the other
Defendants. I look forward to hearing from you.
Sincerely,
/s/ Ajeet Pai
Ajeet P. Pai

cc:

Akshay Deoras
Richard Wynne

US 1743535v.1