Anascape, Ltd v. Microsoft Corp. et al

Filing 129

MOTION to Expedite Briefing on Microsoft's Renewed Motion to Stay Litigation Pending Reexamination In Light Of Patent Office Rejections Of Anascape?s Claims (Docket No. 123) by Microsoft Corp.. (Attachments: # 1 Text of Proposed Order)(Carraway, J)

Anascape, Ltd v. Microsoft Corp. et al

Doc. 129

Case 9:06-cv-00158-RHC

Document 129

Filed 08/01/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION ANASCAPE, LTD. Plaintiff, v. MICROSOFT CORPORATION, and NINTENDO OF AMERICA, INC., Defendants. § § § § § § § § § § Hon. Ron Clark Civil Action No. 9:06-CV-00158-RC

MOTION TO EXPEDITE BRIEFING ON MICROSOFT'S RENEWED MOTION TO STAY LITIGATION PENDING REEXAMINATION IN LIGHT OF PATENT OFFICE REJECTIONS OF ANASCAPE'S CLAIMS Pursuant to Eastern District of Texas Local Rule CV-7(e), Defendant Microsoft Corporation moves the Court for an Order expediting the briefing of Microsoft's Renewed Motion Stay Litigation In Light Of Patent Office Rejections of Anascape's Claims, Docket No. 123, which was filed Monday, July 30, 2007.1 Microsoft requests that the Court set the following briefing schedule: · · · Any opposition brief to be filed no later than Monday, August 6, 2007 Any reply to be filed no later than Wednesday, August 8, 2007 Any surreply to be filed no later than Friday, August 10, 2007

Briefing on this motion should be expedited for the following reasons:

1

In the renewed motion to stay, Microsoft requested this expedited briefing schedule. Docket No. 123, pp. 1-3. After filing, Microsoft realized that Local Rule 9(e) appears to require a separate motion for an expedited briefing schedule, prompting this motion. Microsoft apologizes for any confusion caused by its unintentional failure to file a separate motion pursuant to Local Rule 9(e) on the same day as the motion at issue.

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MICROSOFT'S RENEWED MOTION TO STAY LITIGATION PENDING REEXAMINATION

Dockets.Justia.com

Case 9:06-cv-00158-RHC

Document 129

Filed 08/01/2007

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First, the Court and parties have a claim construction proceeding on August 22, 2007 in which 64 of the 68 claims being construed have already been rejected by the PTO. Part of the resources that would be wasted by continuing with the litigation while claims stand rejected (the basis for the renewed motion for stay) include those preparing for and conducting the upcoming hearing. Second, the parties have already briefed most of the relevant law in the earlier motion for stay. Thus, this motion only requires the parties to address the effect of all of the rejections and decisions by the PTO on the stay of the remaining six patents. Third, Microsoft brought this motion as soon as the claims reached a point where the majority of claims were rejected. On July 18, 2007, the PTO rejected all 46 asserted claims of claims of U.S. Patent No. 6,343,991 (to be construed at the August 22 hearing). Then, just late last week, on August 26-27, the PTO issued three more decisions ordering the following three patents into reexamination: U.S. Patent Nos. 6,135,886 (to be construed at the August 22 hearing), 6,400,303, and 6,208,271. Seeing these PTO decisions, Microsoft prepared and filed the motion within a few days. In conferring on the renewed motion to stay, Microsoft asked Anascape to agree to the above expedited schedule. Anascape refused, explaining that it preferred to follow the standard, month-long briefing schedule. Anascape certainly knows that dragging out the briefing would likely postpone decision until after the Court and the parties have incurred all of the time and resources to prepare for and conduct the August 22 hearing in which nearly all the claims to be construed stand rejected. For the above reasons, Microsoft requests that the Court enter the proposed order expediting the briefing schedule of the renewed motion for stay.

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MICROSOFT'S RENEWED MOTION TO STAY LITIGATION PENDING REEXAMINATION

Case 9:06-cv-00158-RHC

Document 129

Filed 08/01/2007

Page 3 of 4

Respectfully submitted, Dated: August 1, 2007 By: /s/ J. Christopher Carraway ___________ J. Christopher Carraway (admitted pro hac vice) [e-mail] Joseph T. Jakubek (admitted pro hac vice) [e-mail] Stephen Joncus (admitted pro hac vice) [e-mail] Richard D. Mc Leod (Bar No. 24026836) [e-mail] Derrick W. Toddy (admitted pro hac vice) [e-mail] KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: [phone] J. Thad Heartfield (Bar No. 09346800) [e-mail] Law Offices of J. Thad Heartfield 2195 Dowlen Road Beaumont, Texas 77706 Telephone: [phone] Facsimile: 409-866-5789 Clayton E Dark Jr. (Bar No. 05384500) [e-mail] Clayton E Dark Jr., Law Office 207 E Frank Ave # 100 Lufkin, TX 75901 Telephone: [phone] Stephen McGrath, Esq. (admitted pro hac vice) MICROSOFT CORPORATION One Microsoft Way, Building 8 Redmond, Washington 98052-6399 Telephone: [phone] Facsimile: 425-706-7329 Attorneys for Defendant Microsoft Corporation

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MICROSOFT'S RENEWED MOTION TO STAY LITIGATION PENDING REEXAMINATION

Case 9:06-cv-00158-RHC

Document 129

Filed 08/01/2007

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that all counsel of record who have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3) on this the 1st day of August, 2007. /s/ J. Christopher Carraway _______

CERTIFICATE OF CONFERENCE Counsel for Microsoft has conferred with counsel for Anascape in a good faith attempt to resolve without court intervention the matters raised by Microsoft's motion to expedite briefing of the renewed motion to stay. Counsel for Anascape stated that Anascape opposes Microsoft's request that briefing on the motion be expedited to avoid wasting further resources. /s/ J. Christopher Carraway _______

CERTIFICATES OF SERVICE & CONFERENCE