Case 8:19-cv-01150-DOC-KES Document 40 Filed 11/20/19 Page 1 of 7 Page ID #:552
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`JOSHUA A. KREVITT, SBN 208552
`jkrevitt@gibsondunn.com
`PAUL E. TORCHIA
`ptorchia@gibsondunn.com
`FLORINA YEZRIL
`fyezril@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`200 Park Avenue
`New York, NY 10166-0193
`Telephone: 212.351.4000
`Facsimile: 212.351.4035
`
`JENNIFER RHO, SBN 254312
`jrho@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071-3197
`Telephone: 213.229.7000
`Facsimile: 213.229.7520
`
`ANDREW ROBB, SBN 291438
`arobb@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`1881 Page Mill Road
`Palo Alto, CA 94304-1211
`Telephone: 650.849.5300
`Facsimile: 650.849.5333
`
`Attorneys for Defendant Infor, Inc.
`
`
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`SANTA ANA DIVISION
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`UNILOC 2017 LLC,
`
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`Plaintiff,
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`v.
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`INFOR, INC.,
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`
`Defendant.
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`Case No. 8:19-cv-01150-DOC(KESx)
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`INFOR’S SUPPLEMENTAL RULE
`26(F) REPORT
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`Hearing: December 4, 2019, 3 p.m.
`Judge:
`David O. Carter
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`Infor’s Supplemental Rule 26(f) Report
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`1
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`Case 8:19-cv-01150-DOC-KES Document 40 Filed 11/20/19 Page 2 of 7 Page ID #:553
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`Pursuant to Federal Rules of Civil Procedure 26 and 34, defendant, Infor, Inc.
`(“Infor”) files this Supplemental Rule 26(f) Report. Plaintiff Uniloc 2017
`(“Uniloc”) and Infor previously filed a Joint Rule 26(f) report on October 25, 2019.
`D.I. 34. The Court subsequently transferred this case pursuant General Order 19-03,
`vacated the prior scheduling conference before Judge Staton, and set a new
`scheduling conference for December 4, 2019. D.I. 37, 39. The parties in several
`related cases pending before the Court have been ordered to attend this same
`conference. See Uniloc 2017 v. NetSuite Inc. et al.; 8:19-cv-1061-DOC(KESx),
`Square Enix, Inc. and Square Enix LLC v. Uniloc 2017; 8:19-cv-1062-DOC(KESx),
`Ubisoft, Inc. v. Uniloc 2017.
`Infor contacted counsel for Uniloc in advance this filing in an effort to submit
`a new Joint Rule 26(f) report that would comply with this Court’s requirements
`regarding standard deadlines and procedures, and to coordinate scheduling across the
`related cases. As Infor explained, the prior Joint Rule 26(f) report that Infor and
`Uniloc filed was based on Judge Staton’s default practices and model scheduling
`order, and does not comply with this Court’s requirements. Moreover, that report
`was submitted before this Court issued its transfer order, so the proposed deadlines
`were not coordinated across the related cases. Accordingly, Infor prepared this
`supplemental Rule 26(f) report, coordinated with Netsuite, Square Enix, and Ubisoft,
`all of whom agreed to the proposed schedule attached as Exhibit A.
`Uniloc declined to join this filing. Uniloc contended that the parties’ prior
`Rule 26(f) report was sufficient, objected to coordinating scheduling among the
`related cases, and stated that this Court never ordered the parties to file a new Rule
`26(f) report or propose a coordinated schedule. Because Infor believes that the
`parties should make a proposal in accordance with this Court’s practices, and should
`endeavor to coordinate scheduling across the related cases, Infor submits this
`supplemental Rule 26(f) report.
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`Infor’s Supplemental Rule 26(f) Report
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`Case 8:19-cv-01150-DOC-KES Document 40 Filed 11/20/19 Page 3 of 7 Page ID #:554
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`(1) Statement of the case:
`Infor denies the allegations set forth in Uniloc’s First Amended Complaint
`(D.I. 30). Infor contends that the asserted claims of the asserted patents are not
`infringed, directly or indirectly, by Infor products. Infor also contends that the
`asserted claims of the asserted patents are invalid, ineligible, and unenforceable.
`Infor further contends that Uniloc’s failure to mark or give pre-suit notice of
`infringement in accordance with 35 U.S.C. § 287(a) wholly bars any claim for relief
`with respect to the 578 patent. Infor contends that this case is exceptional and that
`Infor is entitled to reasonable attorneys’ fees, expenses, and costs incurred in this
`actions pursuant 35 U.S.C. § 285.
`On October 31, 2019, Infor filed a renewed motion to dismiss Uniloc’s First
`Amended Complaint, because Uniloc cannot plead infringement for any of the
`asserted claims, and because Uniloc’s claim for relief with respect to the 578 patent
`is barred by Uniloc’s inability to plead pre-suit notice of infringement under 35
`U.S.C. § 287. See Motion to Dismiss (D.I. 35). Infor also filed a motion to stay
`discovery pending the resolution of those motions. See Motion to Stay Discovery
`Pending Motion to Dismiss (D.I. 36). This Court vacated the hearing dates for those
`motions when it ordered the December 4, 2019, scheduling conference. Order
`Setting Scheduling Conference (D.I. 39). Infor submits that its motion to dismiss is
`likely to resolve the entire case, or at least substantially narrow it, and to thus
`eliminate or reduce the need for discovery. Accordingly, Infor respectfully proposes
`that the Court set hearing dates for these motions.
`(2) Principal issues:
`Infor asserts that some of the disputed issues include, but are not limited to,
`the following:
` Construction of the asserted claims;
` Whether the Patents-in-Suit have been infringed;
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`Infor’s Supplemental Rule 26(f) Report
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`3
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`Case 8:19-cv-01150-DOC-KES Document 40 Filed 11/20/19 Page 4 of 7 Page ID #:555
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` Whether the Patents-in-Suit are invalid under 35 U.S.C.
`§§ 101, 102, 103, and/or 112;
` Whether the Patents-In-Suit are unenforceable;
` Whether Uniloc has standing to assert the Patents-in-Suit;
` Whether Uniloc is collaterally estopped, either now or at a later
`time, in view of other litigation history on the Patents-in-Suit;
` Whether Uniloc has complied with 35 U.S.C. § 287 and
`whether Uniloc’s alleged damages are limited under the same;
` The amount of damages, if any, under 35 U.S.C. § 284;
` Whether this case is exceptional.
`Infor reserves the right to revise or supplement this list as the case progresses.
`(3) Motions to Amend, Joining Parties: Infor does not contemplate
`motions to add parties or claims, to file amended pleadings, to dismiss for lack of
`jurisdiction, or to transfer venue.
`(4) Dispositive motions:
`To the extent Uniloc’s claims survive Infor’s motion to dismiss, Infor expects
`to file motions for summary judgment relating to non-infringement, invalidity,
`ineligibility, and/or failure to comply with 35 U.S.C. § 287.
`(5) Settlement efforts: The parties have engaged in preliminary
`discussions through their counsel. Infor believes that the mediation would be most
`effective after the parties have more visibility on threshold issues, including Infor’s
`motions to dismiss and stay. Infor therefore requests that mediation be set some
`time in 2020, after its motion to dismiss has been resolved. Infor prefers ADR
`Procedure No. 3, but would further confer with Uniloc about which ADR procedure
`would be most appropriate when the parties are closer to mediation.
`(6) Discovery plan:
`Infor submits a proposed schedule that should govern discovery, attached as
`Exhibit A. Netsuite, Square Enix, and Ubisoft have agreed to this same schedule.
`Infor’s Supplemental Rule 26(f) Report
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`Case 8:19-cv-01150-DOC-KES Document 40 Filed 11/20/19 Page 5 of 7 Page ID #:556
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`Infor proposes that Fed. R. Civ. P. Rule 30(a)(2)’s limit on depositions taken
`without further leave of Court for good cause should be set at 5 depositions per
`party, given the scope of the case and the fact that neither an injunction or lost
`profits (two issues that often require additional discovery) are in play.
`Infor also believes that discovery should be stayed pending its motion to
`dismiss, for the reasons explained in Infor’s co-pending motion to stay discovery.
`See Motion to Dismiss (D.I. 35) and Motion to Stay Discovery Pending Motion to
`Dismiss (D.I. 36). Infor believes that the proposed schedule set forth in Exhibit A
`provides sufficient time for these motions and for the parties to conduct discovery
`after the motion to dismiss is decided in the event that it is denied.
` (7) Preliminary trial estimate: Infor believes that a four (4) day jury trial
`is appropriate.
`(8) Other issues and specific proposed dates:
`Because this is a patent case, the parties propose adoption of the Northern
`District of California patent rules, with the following modification to the deadlines
`specified therein to streamline the issues and discovery in this case:
` Assuming Uniloc serves its P.R. 3-1 and 3-2 disclosures by
`November 22, 2019 (a date Uniloc proposed), Infor will serve
`P.R. 3-3 and 3-4 disclosures on February 14, 2020, or 30 days
`after the ruling on the applicable motion to dismiss, whichever
`is later.1
`Infor proposes a schedule, attached as Exhibit A, which includes the following
`dates:
`
`a. Discovery cut-off date:
`November 6, 2020
`b. Final motion cut-off date: Monday, March 1, 2021
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`1 If Uniloc delays service of its infringement contentions, Infor believes
`that it should receive a corresponding extension on service of invalidity
`contentions.
`Infor’s Supplemental Rule 26(f) Report
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`Case 8:19-cv-01150-DOC-KES Document 40 Filed 11/20/19 Page 6 of 7 Page ID #:557
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`c. Final pre-trial conference: Monday, April 5, 2021
`d. First Trial:
`Tuesday, May 4, 2021
`Although this proposed schedule is coordinated with other cases pending
`before this Court on these same two Patents-in-Suit, Infor does not believe these
`cases should be consolidated for trial. Infor proposes that the parties address the
`order in which the cases should be set for trial at the pre-trial conference.
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`Case 8:19-cv-01150-DOC-KES Document 40 Filed 11/20/19 Page 7 of 7 Page ID #:558
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`Dated: November 20, 2019
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`Respectfully submitted,
`
`
`
`
`
`/s/ Paul E. Torchia
`JOSHUA A. KREVITT, SBN 208552
`jkrevitt@gibsondunn.com
`PAUL E. TORCHIA
`ptorchia@gibsondunn.com
`FLORINA YEZRIL
`fyezril@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`200 Park Avenue
`New York, NY 10166-0193
`Telephone: 212.351.4000
`Facsimile: 212.351.4035
`
`JENNIFER RHO, SBN 254312
`jrho@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`333 South Grand Avenue
`Los Angeles, CA 90071-3197
`Telephone: 213.229.7000
`Facsimile: 213.229.7520
`
`ANDREW ROBB, SBN 291438
`arobb@gibsondunn.com
`GIBSON, DUNN & CRUTCHER LLP
`1881 Page Mill Road
`Palo Alto, CA 94304-1211
`Telephone: 650.849.5300
`Facsimile: 650.849.5333
`
`Attorneys for Defendant Infor, Inc.
`
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`ECF CERTIFICATION
`I certify that my ECF identification and password have been used to file this
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`document.
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`/s/ Paul E. Torchia
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`Infor’s Supplemental Rule 26(f) Report
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