Positive Technologies, Inc., v. Fujitsu America, Inc., et al

MOTION to Dismiss

E.D. Tex.May 10, 2007

51085/2119046.11085/2117391.1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION POSITIVE TECHNOLOGIES, INC. Plaintiff, v. BENQ AMERICA CORP., FUJITSU GENERAL AMERICA, INC., JVC AMERICAS CORP., MITSUBISHI DIGITAL ELECTRONICS AMERICA, INC., NEC DISPLAY SOLUTIONS OF AMERICA, INC., PANASONIC CORP. OF NORTH AMERICA, PHILIPS ELECTRONICS NORTH AMERICA CORP., PROVIEW TECHNOLOGY, INC., REGENT U.S.A., INC., SAMSUNG ELECTRONICS AMERICA, INC., SHARP ELECTRONICS CORP., TOSHIBA AMERICA CONSUMER PRODUCTS, L.L.C., AND V, INC., Defendants, And LG.PHILIPS LCD CO., LTD. AND SAMSUNG SDI CO., LTD. Intervenors. CASE Nos. 2:06-CV-22 TJW and 2:07-CV-67 TJW STIPULATED MOTION TO ENTER A DOCKET CONTROL ORDER IN CASE NO. 2:07-CV-67, TO AMEND THE COMPLAINT IN CASE NO. 2:07-CV-67, AND TO DISMISS CASE NO. 2:06-CV-22 WITHOUT PREJUDICE The parties jointly and respectfully request that the Court enter the attached Proposed Order To Enter A Docket Control Order In Case No. 2:07-CV-67, To Amend The Complaint In Case No. 2:07-CV-67, And To Dismiss Case No. 2:06-CV-22 Without Prejudice. Pursuant to the Court's instructions at the March 6, 2007 Case Management Case 2:06-cv-00022-TJW Document 269 Filed 05/10/07 Page 1 of 6 PageID #: 1319 51085/2119046.11085/2117391.1 2 Conference, the parties have agreed to the terms of this Order after extensive deliberation. As the Court is aware, Positive Technologies, Inc. a California corporation ("PTI- California") is the plaintiff in case No. 2:06-CV-22 ("the first action"). In its Complaint in the first action, PTI-California alleged several counts of patent infringement against the defendants. PTI-California, however, did not own the asserted patents when it filed its Complaint. Positive Technologies, a Nevada corporation ("PT-Nevada") was the true owner. Because PTI-California lacked title at the time it filed its Complaint, PT- Nevada filed a new Complaint, which was assigned Case No. 02:07-CV-67 ("the second action"). During the case management conference for the first action, the Court requested that the parties work together to "clean up" the pleadings. The Parties have worked diligently since then to arrive at this Joint Motion. Defendants have agreed to stipulate to dismiss the first action without prejudice. The defendants have also agreed that PT-Nevada could amend the Complaint in the second action to add U.S. Patent No. 5,280,280 ("the '280 patent") and to assert additional infringement claims against certain of the defendants.1 In return, PT-Nevada agreed to stipulate to a schedule in the second action that provides sufficient time for the parties to fully investigate their claims and defenses and that discovery provided in Case 2:06-CV-22 shall be deemed served in Case No. 2:07- CV-67, as if provided therein. As part of the proffered schedule, the parties request that the Court reschedule the Markman hearing and jury selection dates to Mid-March, 2008 1 Plaintiff further notes that the Amended Complaint will remove claims against V, Inc. under U.S. Patent No. 5,831,588. Case 2:06-cv-00022-TJW Document 269 Filed 05/10/07 Page 2 of 6 PageID #: 1320 51085/2119046.11085/2117391.1 3 and September 8, 2008, respectively (or to dates convenient for the Court), to allow the parties sufficient time to prepare. Accordingly, the parties agree that the following schedule should be entered in the second action: No. Date Event 1 March 23, 2007 Plaintiff's Disclosure of Asserted Claims & Infringement Contentions and related Document Production, including documents relating to Conception, Actual reduction to Practice and Diligence. P.R. 3-1; P.R. 3-2. 2 July 5, 2007 Rule 26(a) Initial Disclosures, including identity of persons & documents, computation of damages & any applicable indemnity agreements. Fed.R.Civ.P. 26(a)(1). Judge Ward’s Discovery Order Par. 1. 3 July 5, 2007 Join Additional Parties. 4 August 27, 2007 Parties to Produce Damages Documents & anything not covered by P.R. 3-4. Judge Ward’s Discovery Order Par. 3 5 August 27, 2007 Defendants’ Invalidity Contentions and related Document Production, including source code, specifications, schematics, flow charts, artwork, formulas, etc. P.R. 3-3, 3-4. 6 September 10, 2007 Privilege Logs to be Exchanged by Parties (or a letter to the Court stating that there are no disputes as to claims of privileged documents). 7 October 17, 2007 Plaintiff to Comply with with P.R. 3-1(h) 9 November 2, 2007 Parties To Exchange Claim Terms For Construction. Judge Ward’s Modification to P.R. 4-1. 9 November 16, 2007 Parties To Exchange Preliminary Claim Constructions & Extrinsic Evidence. P.R. 4-2. 10 November 30, 2007 Amend Pleadings 11 December 7, 2007 Defendants to comply with P.R. 3-3(f) 12 December 7, 2007 Joint Claim Construction & Prehearing Statement. Judge Ward’s Modification to P.R. 4-3. Case 2:06-cv-00022-TJW Document 269 Filed 05/10/07 Page 3 of 6 PageID #: 1321 51085/2119046.11085/2117391.1 4 No. Date Event 13 December 14, 2007 Respond to Amended Pleadings. 14 December 21, 2007 Completion of Claim Construction Discovery. P.R. 4-4. 15 January 4, 2008 Plaintiff's Opening Markman Brief Due. P.R. 4-5(a). 16 January 30, 2008 Defendants’ Responsive Markman Brief Due. P.R. 4-5(b). 17 February 8, 2008 Plaintiff's Reply Markman Brief due. P.R. 4-5(c). 18 February 26, 2008 Parties To File Joint Claim Construction Chart. P.R. 4-5(d). 19 Mid-March, 2008 Markman Hearing. P.R. 4-6. 20 MR Markman Ruling (“MR”) 21 MR+15 days Willfulness Production Due P.R. 3-7 22 MR+30 days Opening Expert Reports Due 23 MR+30 days (Optional) Plaintiff's Amended Infringement Contentions Due. P.R. 3-6(a)(1). 24 MR+50 days (Optional) Defendants’ Amended Invalidity Contentions Due. P.R. 3-6(a)(2). 25 MR+60 days Rebuttal Expert Reports Due 26 May 30, 2008 Discovery Deadline 27 May 30, 2008 Plaintiff to Identify Trial Witnesses 28 June 13, 2008 Defendants to Identify Trial Witnesses 29 July 14, 2008 Deadline for Filing Dispositive Motions (Including Daubert Motions) 30 July 29, 2008 Response to Dispositive Motions Due (Including Daubert Motions) 31 August 8, 2008 Notice of Request for Daily Transcript or Real Time Reporting of Court Proceedings. 32 August 8, 2008 Pretrial Disclosures Due 33 August 22, 2008 Joint Pretrial Order, Joint Proposed Jury Instructions, Objections to Case 2:06-cv-00022-TJW Document 269 Filed 05/10/07 Page 4 of 6 PageID #: 1322 51085/2119046.11085/2117391.1 5 No. Date Event Pretrial Disclosures, and Form of the Verdict Due 34 August 25, 2008 Motions In Limine Due 35 August 28, 2008 Pretrial Conference 36 September 8, 2008 Jury Selection The parties jointly and respectfully request that the Court enter the attached Order. Respectfully Submitted, Scott E. Stevens State Bar No. 00792024 Stevens Law Firm P.O. Box 807 Longview, Texas 75606 (903) 753-6760 (phone) (903) 753-6761 (fax) scott@seslawfirm.com Kevin P.B. Johnson Quinn Emanuel Urquhart Oliver & Hedges, LLP 555 Twin Dolphin Drive, Suite 560 Redwood Shores, CA 94065-2139 (650) 801-5000 (p) (650) 801-5100 (f) kevinjohnson@quinnemanuel.com Attorneys for Samsung Electronics America Case 2:06-cv-00022-TJW Document 269 Filed 05/10/07 Page 5 of 6 PageID #: 1323 51085/2119046.11085/2117391.1 6 CERTIFICATE OF CONFERENCE Counsel for Samsung Electronics America, Inc. discussed the above Motion with counsel for Plaintiff and counsel for all other Defendants, on May 10, 2007, and all parties are unopposed to the Motion. Scott E. Stevens CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to Fed. R. Civ. P. 5(d) and Local Rule CV-5(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 facsimile on this the 10TH day of May, 2007. Scott E. Stevens Case 2:06-cv-00022-TJW Document 269 Filed 05/10/07 Page 6 of 6 PageID #: 1324