Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 1 of 13
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Case No. 4:17-cv-03745-PJH
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`JOINT CASE MANAGEMENT
`STATEMENT
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`FISHER-PRICE, INC. and MATTEL, INC.,
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`v.
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`DYNACRAFT BSC, INC.,
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`Plaintiffs,
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`Defendant.
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`Joint Case Management Statement
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 2 of 13
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`Plaintiff Fisher-Price, Inc. and Mattel, Inc. (“Fisher-Price”) and Defendant Dynacraft
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`BSC, Inc. (“Dynacraft”) hereby submit their Joint Case Management Statement in advance of
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`this Court’s October 12, 2017 Initial Case Management Conference.
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`JOINT STATEMENT
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`1.
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` Jurisdiction and Service: This Court has subject matter jurisdiction under 28 U.S.C. §§
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`1331 and 1338 (a) (federal question and patent). There are no issues as to personal jurisdiction
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`or venue. All Parties have been served.
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`2.
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` Facts: This is a patent infringement action alleging infringement of United States Letters
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`Patent Nos. 7,222,684 entitled “System, Apparatus, and Method for Providing Control of a Toy
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`Vehicle” which issued on May 29, 2007 (the “‘684 patent”); 7,487,850 entitled “Children’s
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`Ride-On Vehicles Having Improved Shifter Assemblies” which issued on February 10, 2009 (the
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`“‘850 patent”); 7,621,543 entitled “Blow-Molded Wheels Having Undercut Treads, Methods for
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`Producing the Same, and Children’s Ride-On Vehicles Including the Same” which issued on
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`November 24, 2009 (the “‘543 patent”), and 7,950,978 entitled “System Apparatus and Method
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`for Providing Control of a Toy Vehicle” which issued on May 31, 2011 (“the ‘978 patent”). The
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`patents cover various safety features of ride-on vehicles for children. The ‘684 and ‘978 patents
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`generally relate to speed control for a ride-on vehicle, which allows for smoother acceleration.
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`The ‘850 patent generally relates to a shifter design, which allows for safely shifting the ride-on
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`vehicle from, for instance, forward to reverse. The ‘543 patent relates to a design and
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`manufacturing technique for the wheels of the ride-on vehicle. The Complaint was filed on
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`January 17, 2017, and alleges that certain Dynacraft ride-on vehicles, including a Disney
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`Princess Carriage ride-on vehicle, infringe these patents under 35 U.S.C. § 271.
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`Joint Case Management Statement
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 3 of 13
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`Dynacraft denies Fisher-Price’s allegations and asserts several defenses, including: (a) that
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`Dynacraft does not infringe any of the patents, either literally or under the doctrine of
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`equivalents, and that the patents are invalid and/or unenforceable under 35 U.S.C. §§ 102-103
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`and 112. Specifically, the ‘684 patent is anticipated and rendered obvious by U.S. Patent No.
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`5,859,509 (Bienz), U.S. Patent No. 4,634,941 (Klion), and U.S. Patent No. 5,994,853 (Ribbe).
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`The ‘978 is anticipated and rendered obvious by U.S. Patent No. 5,859,509 (Bienz), U.S. Patent
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`No. 4,634,941 (Klion), and U.S. Patent No. 5,994,853 (Ribbe). The ‘543 patent is anticipated
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`and rendered obvious by U.S, Patent Pub. No. 2005/0056474 (Damon), U.S. Patent No.
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`5,924,506 (Perego), U.S. Patent No. 4,513,981 (DeGraaff), U.S. Patent No. 3,910,332 (Feller),
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`and the Plastic Blow Molding Handbook by Norman Lee. And the ‘850 patent is anticipated and
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`rendered obvious by U.S. Patent Pub. No. 2005/0056474 (Damon) and U.S. Patent Pub. No.
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`2005/0087033 (Chi).
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` Legal Issues: The key legal issues concern the following subjects:
`3.
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`a. Whether the defendant infringes the patents-in-suit;
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`b. Whether the defendant willfully infringes the patents-in-suit;
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`c. Whether the claims of the patents-in-suit are invalid because they fail to satisfy the
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`requirements of 102 (lack of novelty), 103 (obvious over the prior art), and 112 (lack
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`of written description, lack of enablement, and/or claims fail to particularly point out
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`and distinctly claim the subject matter applicants regard as their invention);
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`d. If liability is found, what amount of damages is appropriate;
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`e. If liability is found, whether an injunction should issue preventing future
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`infringement.
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`Joint Case Management Statement
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 4 of 13
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`4.
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` Motions: There are no pending motions. Dynacraft, however, anticipates filing petitions
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`for inter-partes review challenging the validity of all four patents-in-suit no later than the Case
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`Management Conference currently scheduled for October 12, 2017. In connection with those
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`IPR petitions, Dynacraft also plans to file a motion to stay this case pending the resolution of its
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`IPR petitions. It is Dynacraft’s position that the anticipated IPR petitions may resolve all issues
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`in this case and, therefore, this Court should stay this matter pending those IPRs in order to
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`conserve the time and resources of the Court and the parties. It is Fisher-Price’s position that any
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`motion to stay would be premature at least until decisions on institution in any IPRs are issued.
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`If this case proceeds during the IPR process or resumes after the IPR process is completed, it is
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`anticipated that there may be motions for summary judgment or partial summary judgment filed
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`by one or more of the Parties and a motion to amend the complaint to assert additional infringing
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`products.
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`5.
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` Amendment of Pleadings: The deadline for amending the pleadings should be March 1,
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`2018.
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`The Parties reserve the right to seek permission to amend the pleadings to add additional
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`Parties and/or claims as may be warranted upon further discovery in this action.
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`6.
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` Evidence Preservation: The Parties certify that they have reviewed the Guidelines
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`Relating to the Discovery of Electronically Stored Information and confirm that they have met
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`and conferred (telephonically) pursuant to Fed. R. Civ. P. 26(f) regarding reasonable and
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`proportionate steps to preserve evidence relevant to the issues reasonably evident in this action.
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`To that end, the parties propose the Electronic Discovery Protocol attached to this Statement as
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`Exhibit A.
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`Joint Case Management Statement
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 5 of 13
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`7.
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` Disclosures: The Parties will exchange initial disclosures pursuant to Rule 26(a)(1) no
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`later than October 26, 2017.
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`8.
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` Discovery:
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`The parties have not conducted any discovery to date.
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`The parties have agreed that they will not serve any formal discovery requests until at least
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`October 13, 2017. The parties do not propose any other limits or modification to the discovery
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`rules at this time.
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`The parties have not identified any discovery disputes at this time.
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`Plaintiffs anticipate that discovery will be needed with respect to its cause of action for
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`infringement and to Dynacraft’s defenses, including the following topics: (a) the accused
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`infringing products and the identity of other products which infringe; (b) Dynacraft’s contentions
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`of non-infringement and invalidity under title 35 of the Patent Code; (c) Dynacraft’s sales and
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`financial information relevant to the infringing products; (e) Dynacraft’s marketing of the
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`infringing products; (f) Dynacraft’s patent licensing policies and licenses for in- and out-
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`licensing; and (g) Dynacraft’s awareness of the patents-in-suit and whether it copied any of
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`Fisher-Price’s ride-on designs; and (h) Dynacraft’s contentions that Fisher-Price is not entitled to
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`the relief it requests.
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`In addition to the above matters, Dynacraft anticipates that discovery will be needed on the
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`following topics: (a) conception, development, and commercialization of the claimed inventions;
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`(b) prosecution of the asserted patents; (c) construction of disputed claim terms; (d) prior art and
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`the validity of the asserted patents; (e) licensing of the asserted patents; and (f) patent marking.
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`The Parties propose that the Electronic Discovery Protocol attached to this Statement as
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`Exhibit A governs the timing and scope of ESI production.
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`Joint Case Management Statement
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 6 of 13
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`The parties have discussed and anticipate entering into an agreed upon protective order to
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`govern the handling and production of confidential materials, and procedures for handling the
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`inadvertent production of work-product or privileged materials.
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` Class Actions: This is not a class action. 9.
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`10.
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` Related cases: There are no related cases.
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`11.
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` Relief: Fisher-Price seeks injunctive relief, damages no less than a reasonable royalty
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`and possibly including lost profits and price erosion damages, pre- and post-judgment interest
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`and attorney fees and costs. Fisher-Price does not know at this time what the provable range of
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`damages will be because that is dependent on the number of infringing Dynacraft’s products,
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`their respective sales volume in units and dollars and Georgia-Pacific factors which are not
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`known at this time, but will become known through discovery.
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`Dynacraft denies that Fisher-Price is entitled to any relief.
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`12.
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` Settlement and ADR: The Parties have had preliminary settlement discussions, and are
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`amenable to having additional discussions. From Fisher-Price’s perspective, discovery
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`indicating the volume of accused products is necessary so that it can determine an appropriate
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`settlement offer. Dynacraft remains open to further settlement discussions but does not believe
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`such discussion depend on discovery indicating the volume of accused products.
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`The Parties have met and conferred to select an ADR process as required by the ADR
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`Local Rules, and are amenable to having a settlement conference pursuant to Section 7 of the
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`ADR Local Rules.
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` Consent to Magistrate Judge for All Purposes: The Parties do not consent to have a
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`magistrate judge conduct all further proceedings including trial and entry of judgment.
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`Joint Case Management Statement
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 7 of 13
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`14.
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` Other References: The Parties state that this case is not suitable for reference to binding
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`arbitration, a special master, or the Judicial Panel on Multidistrict Litigation
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` Narrowing of Issues: Fisher-Price is not aware of any issues that can be narrowed by 15.
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`agreement or by motion at this time. Fisher-Price believes that discovery is not mature enough
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`and trial is too remote at this time to determine issues that can be narrowed, suggestions to
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`expedite the presentation of evidence at trial, or whether bifurcation of issues, claims or defenses
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`is appropriate. Fisher-Price intends to address these issues as discovery proceeds and the issues
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`become clearer. Dynacraft believes the issues in this case can be narrowed substantially, or the
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`case can be resolved in its entirety, by staying this action pending resolution of its Petitions for
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`Inter-Partes Review Even if the IPR process does not fully resolve this case, it likely will narrow
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`the case by finding some of the asserted patent claims invalid, evaluating the prior art, and
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`providing claim construction guidance for disputed claim terms. Dynacraft also believes that
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`litigation, or at least discovery relating to damages should be bifurcated and held in abeyance
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`until the pending IPR petitions are resolved. Dynacraft wishes to avoid the time, expense, and
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`revelation of sensitive business information to a competitor in a case that the Patent Trial and
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`Appeal may moot via the IPR process
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` Expedited Trial Procedure: Consistent with the Patent Local Rules, the Parties propose
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`the schedule listed in Section 19, below. The Parties do not believe that this is the type of case
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`that can be handled under the Expedited Trial Procedure of General Order No. 64.
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` Scheduling:
`17.
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`Event
`Initial Disclosures
`Initial Case Management Conference
`Stipulated Protective Order and ESI Order or Motions for Protective
`Order and ESI Order Filed with the Court
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`Proposed Dates
`October 26, 2017
`October 12, 2017
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`October 26, 2017
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`Joint Case Management Statement
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 8 of 13
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`Event
`Infringement
`Fisher-Price’s Disclosure of Asserted Claims and
`Contentions and accompanying document production [Pat. L. R. 3.1-3.2] November 2, 2017
`Dynacraft’s Invalidity Contentions and
`accompanying document production [Patent L. R. 3.3-3.4]
`Exchange of Proposed Terms and Claim Elements for
`Construction [Pat. L. R. 4.1.a-b.]
`Exchange of Preliminary Claim Constructions and Preliminary
`Identifications of Extrinsic Evidence [Pat. L.R. 4.2.a-b.]
`Fisher-Price’s Disclosure of Damages Contentions [Pat. L. R. 3.8]
`Joint Claim Construction and Prehearing Statement [Pat. L.R. 4.3]
`Dynacraft’s Disclosure of Responsive Damages Contentions [Pat. L. R.
`3.9]
`Completion of Claim Construction Discovery [Pat. L.R. 4.4]
`Fisher-Price’s Opening Claim
`Construction Brief [Pat. L.R. 4.5.a.]
`Dynacraft’s Responsive Claim
`Construction Brief [Pat. L.R. 4.5.b.]
`Fisher-Price’s Reply Claim
`Construction Brief [Pat. L.R. 4.5.c]
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`Proposed Dates
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`December 15, 2017
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`January 18, 2018
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`February 8, 2018
`February 23, 20181
`March 8, 2018
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`March 26, 20182
`April 9, 2018
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`April 24, 2018
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`May 15, 2018
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`Tutorial (if the Court desires such a tutorial)
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`Claim Construction Hearing [Pat. L.R. 4.6]
`Deadline to Amend Pleadings
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`Advice of counsel disclosure [Pat. L.R. 3.7]
`Fact Discovery Cutoff
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`May 22, 2018
`May 30, 2018 (or
`date convenient for
`the Court)
`June 6, 2018 (or
`date convenient for
`the Court)
`March 1, 2018
`30 days after claim
`construction ruling
`September 20, 2018
`7 days after close of
`fact discovery
`Deadline to file discovery motions relating to fact discovery
`October 25, 2018
`Designation of Opening Experts with Reports
`December 6, 2019
`Designation of Rebuttal Experts with Reports
`February 7, 2019
`Close of Expert discovery
`Last day to File Summary Judgment Motions or other Dispositive Motions February 28, 2019
`Summary Judgment Oppositions
`March 21, 2019
`Summary Judgment Replies
`April 4, 2019
`Summary Judgment Hearing
`April 30, 2019 (or
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`1 See paragraph number 23 for parties’ positions.
`2 See paragraph number 23 for parties’ positions.
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 9 of 13
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`Event
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`Serve Motions In Limine, Trial Briefs, Deposition Designations, Proposed
`Voir Dire, Proposed Jury Verdict, Joint Pretrial Statement
`Oppositions to Motions In Limine, Oppositions to Designations, Counter
`Designations, Objections to Voir Dire and Jury Forms, Proposed Jury
`Instructions
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`Final Pretrial Conference
`Trial
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`Proposed Dates
`date convenient for
`the Court)
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`September 19, 2019
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`October 3, 2019
`October 22, 2019
`(or date convenient
`for the Court)
`November 11, 2019
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` Trial: The case will be tried to a jury. Although it is early, the Parties estimate that the
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`case will take ten trial days.
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` Disclosure of Non-Party Interested Entities or Persons: Fisher-Price filed its
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`certificate of interested persons on January 17, 2017, and reported that, other than the Parties,
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`there were no interested persons or entities. Dynacraft filed its certificate of interested persons
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`on July 20, 2017, and reported that, other than the Parties, there were no interested persons or
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`entities.
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` Professional Conduct: All attorneys of record for the parties have reviewed the
`20.
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`Guidelines for Professional Conduct for the Northern District of California.
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` Other: The Parties have reached the following additional agreements to facilitate the 21.
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`just, speedy, and inexpensive disposition of this matter:
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`a. The Parties agree to service of documents on counsel of record by e-mail pursuant
`to Rule 5(b)(2)(E).
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`b. The Parties agree that any materials protected from discovery by the attorney-
`client privilege or the work product doctrine and created after January 17, 2017,
`solely for the purposes of this litigation, do not need to be identified on a log of
`withheld documents under Rule 26(b)(5).
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`c. The Parties agree that Federal Rule of Evidence 502 applies to the conduct of
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 10 of 13
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`discovery in this case. To that end, the Parties respectfully request that the Court
`enter an order stating that Rule 502 applies in this case and in all proceedings in
`any other federal or state court in line with Fed. R. Evid. 502(d). Entry of this
`Case Management Statement will constitute such a Rule 502(d) order.
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`d. A party that serves a subpoena on a non-party (the “Issuing Party”) shall include a
`copy of the controlling Protective Order and the Electronic Discovery Protocol
`with the subpoena.
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`e. The Issuing Party shall promptly produce to all other parties all documents and
`things obtained from any non-party by subpoena.
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`OTHER MATTERS:
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`ADDITIONAL INFORMATION PURSUANT TO PAT. LOCAL RULE 2-1
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`22.
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` Proposed modifications to the obligations or deadlines set forth in the Patent Local
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`Rules: The Parties’ proposed schedule is set forth in Section 17, above.
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` The scope and timing of any claim construction discovery and damages discovery:
`23.
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`The timing of discovery is set forth in the parties’ proposed schedule in Section 17, above.
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`Dynacraft, however, contends that the parties should delay damages discovery until after the
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`Court issues its claim construction order. The parties are direct competitors and, notwithstanding
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`the protections offered by a confidentiality order, Dynacraft does not believe that it should be
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`compelled to divulge sensitive financial information to a competitor unless it is absolutely
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`necessary. Moreover, postponing damages discovery provides the added benefit of narrowing
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`and reducing the cost of discovery until after the parties can better assess liability in this case.
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`Fisher-Price contends that damages discovery should not be delayed. Such a delay would largely
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`prevent any meaningful opportunity for settlement during the early stages of the case, and would
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`further prevent Fisher-Price from timely submitting its damages contentions under Patent Local
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`Rules 3.8.
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`Joint Case Management Statement
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`Case 4:17-cv-03745-PJH Document 43 Filed 10/05/17 Page 11 of 13
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`24.
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` The format of the Claim Construction Hearing, including whether the Court will
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`hear live testimony, the order of presentation, and the estimated length of the hearing: The
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`Parties are amenable to presenting argument at the claim construction hearing in the following
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`manner: for each claim term, each party will present its argument before moving to the next
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`claim term, with the parties alternating who presents first for each claim term. The parties
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`currently anticipate that the claim construction hearing will last no more than one day. At this
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`time, Plaintiffs do not anticipate a need to present live testimony. Defendant does not know
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`whether or not it will present live testimony.
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` How the parties intend to educate the Court on the technology at issue: The Parties
`25.
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`propose educating the Court on the technology at issue either during the course of the Claim
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`Construction Hearing, or through a tutorial on the date set forth in the Proposed Schedule in
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`Section 17, above, if the Court believes such a tutorial would be helpful.
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` Non-Binding, good faith estimate of the damages range: Fisher-Price cannot at this
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`time give an estimate of damages because it does not know the amount of sales of the accused
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`products that Dynacraft has made (or whether Dynacraft will be selling additional infringing
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`products during the course of these proceedings). Once it knows these sales figures, it will be
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`able to provide at least a non-binding estimate of what a reasonable royalty would likely be.
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`Likewise, Dynacraft cannot at this time estimate damages as it believes the patents-in-suit are
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`invalid and not infringed as explained above. Therefore, Dynacraft does not believe that Fisher-
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`Price is entitled to recover any damages in this case. Moreover, any damages analysis in this case
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`likely will require complex analysis of the value of the claimed inventions and how much those
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`inventions contribute to the value of the accused products.
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`Dated: October 5, 2017
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`By: /s/Michael Zachary
`Michael Zachary
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`Michael Zachary (CA SBN 113479)
`mzachary@andrewskurthkenyon.com
`ANDREWS KURTH KENYON LLP
`1801 Page Mill Road, Suite 210
`Palo Alto, CA 94302-1216
`Telephone: (650) 384-4700
`Facsimile: (650) 384-4701
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`Respectfully submitted,
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`Dated: October 5, 2017
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`By: /s/Arthur Gollwitzer
`Arthur Gollwitzer
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`Arthur Gollwitzer, III (TC Bar No. 24073336)
`(admitted pro hac vice)
`Agollwitzer@michaelbest.com
`MICHAEL BEST & FRIEDRICH LLP
`2801 Via Fortuna, Suite 300
`Austin, TX 78746
`Telephone: (512) 640-3161
`Fax: (312) 222-0818
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`Patricia L. Peden
`Patricia.Peden@leclairryan.com
`LECLAIRRYAN LLP
`44 Montgomery Street, Suite 3200
`San Francisco, CA 94104
`Telephone: (415) 913-4932
`Fax: (415) 391-8766
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`Larry L. Saret (IL Bar No. 02459337)
`(admitted pro hac vice)
`Llsaret@michaelbest.com
`MICHAEL BEST AND FRIEDRICH LLP
`444 West Lake Street, Suite 3200
`Chicago, IL 60606
`Telephone: (312) 661-2116
`Fax: (312)222-0818
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`Rachel Bach (1092048)
`(admitted pro hac vice)
`Rnbach@michaelbest.com
`MICHAEL BEST AND FRIEDRICH LLP
`100 E. Wisconsin Ave., Suite 3300
`Milwaukee, WI 53202
`Telephone: (414) 271-6560
`
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`John R. Hutchins (DC Bar No.456749)
`(admitted pro hac vice)
`jhutchins@andrewskurthkenyon.com
`ANDREWS KURTH KENYON LLP
`1350 I Street, NW, Suite 1100
`Washington, DC 20005
`Telephone: (202) 622-2700
`Facsimile: (202) 662-2739
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`Attorneys for Plaintiffs
`Fisher-Price, Inc. and Mattel, Inc.
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`I attest that Arthur Gollwitzer authorized me to sign this document electronically on his
`behalf.
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`Dated: October 5, 2017
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`ANDREWS KURTH KENYON LLP
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` By: /s/ Michael Zachary
` Michael Zachary (CA SBN 112479)
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