Interval Licensing LLC v. AOL, Inc. et al

Filing 206

RESPONSE, by Plaintiff Interval Licensing LLC, to #198 Joint MOTION to Stay by all Defendants filed. (Sargent, Edgar)

Interval Licensing LLC v. eBay, Inc. et al

Doc. 206

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 26 27 28 INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO STAY No. 2:10-cv-01385-MJP Page 1 of 15

Hon. Marsha J. Pechman

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE INTERVAL LICENSING LLC, Case No. 2:10-cv-01385-MJP Plaintiff, v. AOL, INC.; APPLE, INC.; eBAY, INC.; FACEBOOK, INC.; GOOGLE INC.; NETFLIX, INC.; OFFICE DEPOT, INC.; OFFICEMAX INC.; STAPLES, INC.; YAHOO! INC.; AND YOUTUBE, LLC, Defendants. INTERVAL LICENSING LLC OPPOSITION TO DEFENDANTS' MOTION TO STAY JURY DEMAND ORAL ARGUMENT REQUESTED

Plaintiff Interval Licensing LLC ("Interval") responds to the motion to stay filed jointly by all defendants. INTRODUCTION Having waited over six months to file a request for reexam, the defendants now seek to force Interval and the Court to abandon the substantial work that has already been performed in this litigation and put this case on hold for an uncertain period that could very well be six years or more. The defendants understate the delay inevitably caused by a reexam stay and they overstate the probability that the asserted claims will all be materially modified. They seek this relief before the PTO has even granted the reexam requests, a step that itself will likely take sixty to ninety days. Courts have increasingly begun to recognize the reexam/litigation stay motion for what it is: a delay tactic employed by patent
SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

Dockets.Justia.com

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infringement defendants who hope to put off their day of reckoning. Moreover, Defendants have heightened their tactical games by having different defendants file different requests for reexamination. Absent a stay, all issues will be resolved 16 months from now, which is less than half the time that it will likely take the PTO to complete the reexamination process, and likely six years or more before all reexamination appeals are resolved. This Court should not allow the defendants to derail this litigation, but should instead continue to assert its Article III jurisdiction to provide a just and expeditious resolution of these patent infringement claims. ARGUMENT 1. Staying Litigation Is Discretionary This Court has broad discretion to decide to stay this litigation or to allow it to proceed. See, e.g., Amado v. Microsoft Corp., 517 F.3d 1353, 1358 (Fed. Cir. 2008). Motions to stay are driven by the facts and circumstances of the individual case and a stay pending reexam is anything but automatic. Indeed, other districts in this Circuit with patentheavy dockets recognize that a stay can often be counter-productive: [T]here appears to be a growing concern among at least some judges in this district that, on balance, staying a case even in its early stages pending reexamination has not led to the just, speedy, and efficient management of the litigation, but instead has tended to prolong it without achieving sufficient benefits in simplification to justify the delay. This concern stems in part from the unpredictable but often lengthy duration of the stay due to the length of PTO reexamination proceedings . . .in contrast to the salutary effect of firm deadlines on efficient case management. Network Appliance Inc. v. Sun Microsystems Inc., 2008 WL 2168917 (N.D. Cal. 2008).1

Although the Network Appliance Court granted the request for the stay with respect to one of the patents being litigated, that decision was based in large part on the fact that the PTO had already issued an office action rejecting all sixty-three claims in that patent. Network Appliance, 2008 WL 2168917 at *1. Here, by INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO S U S M A N G O D F R E Y L . L . P . 1201 Third Avenue, Suite 3800 STAY Seattle, WA 98101-3000 No. 2:10-cv-01385-MJP Tel: [phone]; Fax: [phone] Page 2 of 15

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Judge LaPorte's assessment in Network Appliance of the Northern District of California's growing concern over litigation stays appears to have been accurate: orders denying stay requests have become commonplace in that Court during the past two years. See, e.g., Affinity Labs of Texas, Inc. v. Apple, Inc., 2010 WL 1753206 at *2 (N.D. Cal. April 29, 2010); Ultra Products Inc. v. Antec, Inc., 2010 WL 1688538 at *4 (N.D. Cal. April 26, 2010); Wordtech Sys. Inc., v. Microboards Manufacturing, LLC, 2010 WL 1641510 at *2 (N.D. Cal. April 22, 2010); Esco Corp. v. Berkeley Forge & Tool, Inc., 2009 WL 3078463 at *4 (N.D. Cal. Sept. 28, 2009); Sorensen v. Ampro Tools Corp., 2009 WL 605831 *4 (N.D. Cal. March 9, 2009). An oft repeated theme of these cases is that a policy of granting stays that is too liberal invites defendants to "unilaterally derail" litigation. Esco Corp. 2009 WL 3078463 at *2 (quoting Soverain Software LLC v. Amazon.Com, Inc., 356 F.Supp.2d 660, 662 (E.D. Tex. 2005)). The same concern has been recognized in the legal press. See, e.g,, Exhibits 1 and 2 to Declaration of Edgar Sargent, March 28, 2011

("Sargent Decl."). When deciding a motion to stay pending reexam, courts consider three factors: (1) the likelihood that issues will be simplified or clarified by the reexam process; (2) the stage of the litigation; (3) prejudice to the non-moving party. F5 Networks, Inc. v. A10 Networks, Inc., 2010 WL 5138375 at *1-2 (W.D. Wash. 2010). None of these factors supports a stay in this case. 2. There Is No Basis For Concluding That A Reexam Will Simplify This Litigation.

contrast, the PTO has not even accepted the reexam request, much less issued an office action invalidating any claims. INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO S U S M A N G O D F R E Y L . L . P . 1201 Third Avenue, Suite 3800 STAY Seattle, WA 98101-3000 No. 2:10-cv-01385-MJP Tel: [phone]; Fax: [phone] Page 3 of 15

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The defendants make no attempt to explain how or why the asserted claims of the patents in suit will be clarified or simplified as a result of the reexam. Rather than

identifying alleged ambiguities in the claims or explaining their assertion that certain claims were anticipated by the prior art, the defendants rely on statistics and assumptions to argue that modification of the claims in these patents is "likely." This is secondary evidence at best and is not sufficient to carry the defendants' burden to justify a multi-year delay in resolution of this suit. The defendants' statistics problem begins at the very beginning. Because their reexam request has not yet even been granted by the PTO, the defendants ask the Court to issue a stay based only on the probability that the PTO will grant the request. (D. Br. at 4.) But the defendants' probability argument is misleading. There are four patents in suit here, yet the statistics cited by the defendants describe the chances that a reexam request for a single patent will be granted. The odds that all four reexam requests will be granted are substantially worse than the odds for a single patent. And, in this case, those odds are further reduced by the fact that two of the reexam requests are ex parte, which the PTO grants less frequently than inter partes requests. Even if the Court were to overlook the fact that the PTO has not yet granted reexam requests for any of these patents, the argument that any eventual reexam will simplify issues in this litigation is unsupported by any explanation tied to these patents, these claims, or this prior art. Instead, again, the defendants simply cite statistics. The defendants have made no attempt to demonstrate that any particular claims are likely to be invalidated or modified based on the asserted prior art. See F5 Networks, Inc. v. A10 Networks, Inc., 2010 WL 5138375 at *2 (W.D. Wash. 2010) (denying a motion for stay because "it is not possible to
INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO STAY No. 2:10-cv-01385-MJP Page 4 of 15 SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

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predict whether a successful reexamination request will simplify the issues in the case if the Court does not know what they are."). The statistics on canceled and modified claims cited by the defendants in lieu of case-specific evidence are even more misleading than their statistics concerning the granting of reexam requests. The defendants lump together reexams that result in canceled claims

with those that result only in amendments, claiming that 77% of ex parte and 90% of inter partes reexams result in one or the other. (D Br. at 4.) There is no indication in these bare statistics of how significant the amendments are, or what the "odds" would be that an amended or canceled claim would also be one of the claims asserted in this litigation. Without more detailed information, the defendants' data is almost meaningless. The chances that amendments would impact every claim being litigated are simply too small to justify a stay of up to six years. Again relying solely on the statistics cited by the defendants, the chances are approximately 63% that at least one of the patents will have no claims amended or cancelled.2 This is, in fact, the relevant metric for evaluating the potential benefit from the reexam because a judgment of patent infringement does not require finding infringement on all claims in all of the asserted patents, but only on one claim from one patent. If, as the defendants' statistics suggest, the chances are nearly 63% that at least one of the patents will emerge unchanged, then infringement of any claim in this patent will be no different after the reexam than it would have been before.

According to the defendants statistics, the chances that a patent undergoing ex parte reexam will emerge with all claims unchanged is 23% and the chances that a patent undergoing inter partes reexam will emerge unchanged is 10%. (D. Br. at 4.) The defendants have sought ex parte reexam of two patents and inter partes reexam of the other two. Thus the chances that at least one of the four patents will emerge with all claims unchanged is 1 ­(.77*.77*.9*.9) or just over 51%. Taking into account the possibility that reexam will not even be granted for at least one of the patents increases the chances that at least one patent will not be changed to nearly 63% [1 ­ (.77*.77*.9.*.9*.92*.92*.96*.96)]. INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO S U S M A N G O D F R E Y L . L . P . 1201 Third Avenue, Suite 3800 STAY Seattle, WA 98101-3000 No. 2:10-cv-01385-MJP Tel: [phone]; Fax: [phone] Page 5 of 15

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The defendants' response to the likelihood that the litigation will ultimately have to resume based on at least some unmodified claims is to argue that the court will benefit from representations made by Interval to the PTO during the reexam. This justification is

specious. At this point, the defendants are free to submit the same prior art in this litigation as they are to the PTO and any claim construction positions or other representations that Interval takes in response to any claimed prior art would be the same in the litigation as it would be before the PTO. Any benefit that the Court or the parties would receive from having these positions hashed out in advance in another proceeding is more than offset by the years of delay required. Moreover, although this motion was signed by all defendants, none of the reexam requests were joined by all of the defendants who are accused of infringing the patent in question. The defendants have provided no explanation for this tactic but it suggests that some defendants will argue that they are not bound by the results of reexams in which they did not participate (an argument that should not be sustained). This potential multi-party evidentiary tangle would further complicate, rather than simplify, issues of claim construction and validity. This Article III Court is fully capable of resolving this issues based on the evidence presented in this case and there is no practical justification for ceding jurisdiction over these issues to a parallel proceeding before the PTO, only to revisit many of the same issues in the subsequent litigation. 3. The Parties And The Court Have Expended Significant Resources In This Litigation. This case has advanced significantly in this Court and a stay pending reexam would inevitably cause much of the benefit of that work to be lost. Both the parties and the Court
INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO STAY No. 2:10-cv-01385-MJP Page 6 of 15 SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

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have invested substantial resources in resolving preliminary issues, framing the infringement case and defenses, establishing a court calendar, and making progress in discovery. Given that the case has advanced this far, the "stage of litigation" factor does not support a stay. See, e.g., Output Technology Corp. v. Dataproducts Corp., 1991 U.S. Dist. LEXIS 20168 at *7 (W.D. Wash. 1991) (denying a stay pending reexam when "discovery is well underway" based on service of interrogatories and requests for production and defendant "has not made out a case of hardship in going forward.") The defendants emphasize the work that remains to be done in the litigation, including the Markman hearing and the trial, and argue that the harm from a stay is minimal because these proceedings have not yet occurred. (D. Br. at 8.) This argument has things backwards; the "stage of litigation" factor is intended to address harm from a stay caused by losing the benefit of the effort that has already been expended if the parties and the Court must wait several years to proceed. From that perspective, a stay in this case would be demonstrably wasteful. The defendants waited seven months from the time they were served with the Complaint before filing their petitions for reexam. During those seven months much progress has been made in the litigation: Several motions to dismiss have been briefed and resolved and a renewed motion to dismiss or sever is pending; Preliminary infringement contentions have been prepared and served; Preliminary non-infringement contentions have been prepared and served; Defendants have served interrogatories and over 450 document requests, and Interval has already served responses to over 280 of them; Interval has served document requests and interrogatories, to which defendants have served responses and supplement responses; All parties have produced documents; Lists of terms for claim construction have been exchanged and Interval's experts are working on an expert report, which is due on April 4.
SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

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In addition to the time, fees, and expenses incurred by the parties, the Court has held a status conference to address the best approach to this case and, after receiving briefing, issued a detailed scheduling order setting out an approach to coordinated discovery and a two-track plan for trial on the merits. All of this work by the parties and the Court would need to be revisited, and much of it entirely re-done, if the progress of this litigation is interrupted for several years. The defendants cite several cases where stays were issued at even later points in the progress of the litigation than is at issue here. (D. Br. at 9). Of course these are

discretionary decisions for the individual court and none of these decisions are binding here. A number of these cases are over ten years old and pre-date the current reexam workload of the PTO (which has been brought on in large part by defendants' use of the reexam stay as a litigation tactic). And, most importantly, these cases involved other factors making the stay less prejudicial but found that the "stage of litigation" factor disfavored a stay.3

See, 3M innovative Props. Co. v. DuPont Dow Elastomers LLC, 2005 WL 2216317 at *3 (D. Minn. 2008) (finding that the stage of litigation "weighs against granting a stay" but issuing a stay nevertheless because reexam had been underway for over six months and the party opposing the stay was also the party that had filed the reexam request); Middleton, Inc. v. Minnesota Mining & Mfg. Co., 2004 WL 1968669 at *5, 8 (S.D. Iowa 2004) (finding that the status of the litigation weighed against a stay but granting the stay "under all of the unique circumstances of this case" as a result of substantial amounts of foreign and domestic prior art that had been uncovered in discovery and that had been submitted to the PTO with the reexam request); Softview Computer Prods. Corp. v. Haworth, Inc., 2000 WL 1134471 *1 (S.D.N.Y. 2000) (entering no finding on the "status of litigation" factor but staying litigation involving a single patent when the PTO had already granted reexam request and begun the reexam process); Loffland Bros. Co. v. Mid-Western Energy, Corp., 1985 WL 1483 *2 (granting a stay when the party opposing was simultaneously asking for an extension of the pre-trial schedule); Grayling Industries, Inc. v. GPAC, Inc., 1991 WL 236196 at *2-3 (granting a stay despite finding that "the interests underlying the reexam procedure doubtless would have been served better by an earlier filing of the petition" based in part on the understanding that the reexam action had already been proceding and might conclude within two months); Lentek Int'l Inc. v. Sharper Image Corp., 169 F. Supp. 1360, 1363 (M.D. Fla. 2001) (granting stay when party opposing it was the party who filed the reexam petition). INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO S U S M A N G O D F R E Y L . L . P . 1201 Third Avenue, Suite 3800 STAY Seattle, WA 98101-3000 No. 2:10-cv-01385-MJP Tel: [phone]; Fax: [phone] Page 8 of 15

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Even if the defendants were correct and this case were in an early stage for purposes of this inquiry, this fact would not weigh heavily in favor of a stay. "Although the advanced nature of a case approaching trial may weigh heavily against granting a stay, the opposite inference--that a suit in the early stages should weigh heavily in favor of a stay--is not true." Sighting System Instruments, LLC. v. Prestige Law Enforcement, Inc., 2006 WL 2642184 (N.D. Tex. 2006). The focus of the inquiry is on the efforts that would be lost if a stay were granted, there is no countervailing policy favoring a stay if the Court concludes that such waste would be minimal. Id. 4. Interval Would Suffer Significant Prejudice From The Delay Caused By A Stay. The defendants understate the length of the delay that is likely to result from a stay. Once again, they have ignored the fact that they seek reexam of four patents, not one, and the stay will presumably be in force until all four have emerged from reexam. Two of the reexam requests are inter partes and the current statistics from the PTO indicate that the average length of an inter partes reexam is over three years. Ex. I to Decl. of M. Walters (Doc. No. 199-14) at #6. Given that this is a mean, the odds are high that at least one of the reexams will take longer than three years to emerge from the PTO. This delay appears likely to increase given the ever increasing volume of reexam requests filed with the PTO each year. Id. at #3. The statutory mandate that the PTO complete reexams of patents in litigation "with special dispatch" provides no true benefit given that 70% or more of the patents in reexam are also involved in litigation. Id. at #4. In addition, the stay should factor in the possibility of an appeal from the reexam results, which typically adds three

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SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

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years to the time needed to complete a reexam. Thus, it is possible that at least one of the patents in suit would be in reexam for more than six years. By contrast, this Court has established a very efficient schedule for the completion of this litigation, including the first of two trials scheduled to begin approximately one year from now. There can be no doubt that the litigation in this Court would likely be concluded years before the completion of any reexam. The ever increasing length of the delay caused by the backlog of reexam requests at the PTO has been a substantial factor in leading courts in this Circuit to deny motions for a stay pending reexam. See, e.g., Affinity Labs of Texas, Inc. v. Apple, Inc., 2010 WL 1753206 at *2 (N.D. Cal. 2010) (denying a motion to stay pending reexam in part because the three year time frame for reexams is "likely to increase given the steady rise in the number of reexam requests in recent years" and finding that delay of such length to be unduly prejudicial to the plaintiff). Here, as in the Affinity Labs litigation, the prejudice caused by the delay has been compounded by the defendants' (including Apple, represented by the same counsel it had in Affinity Labs) having waited for months to serve their reexam requests. Id. (noting the additional prejudice imposed as a result of Apple's seven-month delay in filing the reexam request). The prejudice to which Interval would be subjected by having to wait six years to pursue this litigation is undeniable. A delay of this length cannot be considered even roughly equivalent to the one or two year delays contemplated in some of the older cases cited by the defendants. See e.g. Donnelly Corp. v. Guardian Industries Corp. 2007 WL 3104794 at *8 (one and one-half years or less); Grayling Industries, Inc. v. GPAC, Inc., 1991 WL 236196 at *3 (delay of two months). Six years of delay raises serious concerns

INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO STAY No. 2:10-cv-01385-MJP Page 10 of 15

SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

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about loss of evidence as witnesses become unavailable or their memories fade and records in the hands of third-parties are destroyed. See, e.g., Affinity Labs, 2010 WL 1753206 at *2. Moreover, the parties to a PTO proceeding do not have subpoena power. Though the PTO's patent expertise is often cited as benefit to the courts and a justification for staying litigation, perhaps just as frequent, though less frequently mentioned, is the benefit that the PTO receives by having access to evidence obtained through discovery in patent litigation. Documents obtained from third-parties and deposition transcripts of inventors of alleged prior art are regularly submitted as part of the reexam process, but such evidence would be unavailable here if a stay is granted. The defendants argue that Interval waited for years before filing suit and thus cannot be prejudiced by additional delay. The implication that Interval simply sat on its rights without making any effort to protect them is false. As explained more fully in the

Declaration of Davina Inslee filed in conjunction with this opposition, the small staff employed by Interval spent years reviewing the patents and other intellectual property in an effort to determine the value of the portfolio and its various components. Declaration of Davina Inslee, March 28, 2011, at ¶ 12-16. Moreover, even if true, whether Interval waited to bring suit is irrelevant to the question at hand ­ whether a stay of up to 6 years would materially benefit this litigation due solely to the fact that defendants have filed requests for reexamination. CONCLUSION Congress has not indicated that reexaminations are the exclusive mechanism for enforcing a patent. Just the opposite. The right given to a patent holder is a right to exclude ­ a right that must be enforced through litigation if infringers do not take a license.
INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO STAY No. 2:10-cv-01385-MJP Page 11 of 15 SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

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Delaying enforcement of that right for an indeterminate period of years and years on the mere filing of a request for reexamination or even a granting of a request for reexamination would substantially weaken patent rights. For good reason, more and more courts across the country have rejected stays pending reexamination and have viewed these requests for what they really are ­ litigation ploys designed to indefinitely delay litigation and final resolution of the parties' rights. Belying claims that the delay would be harmless, the consequences of the relief sought by the defendants would be an uncertain delay that could very well last six years or more, the results of which are more likely than not to return at least one of the patents in suit entirely unchanged. The prejudice is obvious and it is extreme. The request for a stay should be denied and this Court should proceed with this litigation according to the schedule that has now been in place for over two months, and that will resolve all issues within 16 months. Dated: March 28, 2011 /s/ Edgar Sargent Justin A. Nelson WA Bar No. 31864 E-Mail: [e-mail] Matthew R. Berry WA Bar No. 37364 E-Mail: [e-mail] Edgar Sargent WA Bar No. 28283 E-Mail: [e-mail] SUSMAN GODFREY L.L.P. 1201 Third Ave, Suite 3800 Seattle, WA 98101 Telephone: [phone] Facsimile: [phone] Max L. Tribble, Jr.
INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO STAY No. 2:10-cv-01385-MJP Page 12 of 15 SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

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E-Mail: [e-mail] SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: [phone] Facsimile: [phone] Michael F. Heim E-mail: [e-mail] Eric J. Enger E-mail: [e-mail] Nate Davis E-mail: [e-mail] HEIM, PAYNE & CHORUSH, L.L.P. 600 Travis, Suite 6710 Houston, Texas 77002 Telephone: [phone] Facsimile: [phone] Attorneys for INTERVAL LICENSING LLC

INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO STAY No. 2:10-cv-01385-MJP Page 13 of 15

SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

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CERTIFICATE OF SERVICE I hereby certify that on March 28, 2011, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following counsel of record: Attorneys for AOL, Inc. Aneelah Afzali Cortney Alexander Robert Burns Elliot Cook Gerald Ivey Scott Johnson Shannon Jost Attorneys for Apple, Inc. David Almeling Brian Berliner George Riley Jeremy Roller Scott Wilsdon Neil Yang [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

Attorneys for eBay, Inc., Netflix, Inc., and Staples, Inc. Chris Carraway [e-mail] Arthur Harrigan, Jr. [e-mail] John Vandenberg [e-mail] Christopher Wion [e-mail] Attorneys for Facebook, Inc. Christen Dubois Heidi Keefe Michael Rhodes Elizabeth Stameshkin Mark Weinstein [e-mail] [e-mail] [e-mail] [e-mail] [e-mail]

Attorneys for Google, Inc. and YouTube, LLC Aneelah Afzali [e-mail] Aaron Chase [e-mail] Dimitrios Drivas [e-mail] John Handy [e-mail] Warren Heit [e-mail] Scott Johnson [e-mail] Shannon Jost [e-mail] Kevin McGann [e-mail]
INTERVAL OPPOSITION TO DEFENDANTS' MOTION TO STAY No. 2:10-cv-01385-MJP Page 14 of 15 SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]

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Wendi Schepler Attorneys for Office Depot, Inc. Chris Carraway John Vandenberg Arthur Harrigan, Jr. Christopher Wion Attorneys for OfficeMax, Inc. Kevin Baumgardner Steven Fogg John Letchinger Douglas Rupert Attorneys for Yahoo! Inc. Francis Ho Richard S.J. Hung Michael Jacobs Matthew Kreeger Dario Machleidt Eric Ow Mark Walters

[e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] By: __/s/ Edgar Sargent______ Edgar Sargent

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SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, WA 98101-3000 Tel: [phone]; Fax: [phone]