Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 1 of 10
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`
`
`Michael Zachary (CA SBN 112479)
`mzachary@andrewskurthkenyon.com
`ANDREWS KURTH KENYON LLP
`1801 Page Mill Road, Suite 210
`Palo Alto, CA 94304-1216
`Telephone: (650) 384-4700
`Facsimile: (650) 384-4701
`
`John R. Hutchins (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
`
`Attorneys for Plaintiffs
`Fisher-Price, Inc. and Mattel, Inc.
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`
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`FISHER-PRICE, INC. and
`MATTEL, INC.
`
` Plaintiffs,
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`v.
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`DYNACRAFT BSC, INC.
`
` Defendant.
`
`Case No. 4:17-cv-03745-PJH
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`PLAINTIFFS’ OPPOSITION TO
`DYNACRAFT’S MOTION TO STAY
`AND SUPPORTING MEMORANDUM
`OF POINTS AND AUTHORITIES
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`Date: November 15, 2017
`Time: 9:00 a.m.
`Courtroom: 3, 3rd Floor
`Hon. Phyllis J. Hamilton
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`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
`
`DC01:1162944.2
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`- 1 -
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`CASE NO. 4:17-CV-03745-PJH
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`Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 2 of 10
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`Plaintiffs Fisher-Price, Inc. (“Fisher-Price”) and Mattel, Inc. (“Mattel”) (collectively,
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`“Plaintiffs”) respectfully submit this response to Defendant Dynacraft BSC, Inc.’s (“Dynacraft”)
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`Motion to Stay (D.I. 44) .
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`I.
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`
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`INTRODUCTION
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`This is a case for patent infringement in which Plaintiffs allege that their direct competitor
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`in the children’s battery-powered ride-on vehicle market, Dynacraft, infringes U.S. Patent No.
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`7,222,684 (“the ’684 patent”), U.S. Patent No. 7,487,850 (“the ’850 patent”), U.S. Patent No.
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`7,621,543 (“the ’543 patent”), and U.S. Patent No. 7,950,978 (“the ’978 patent”) (collectively, the
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`“patents-in-suit”). The patents-in-suit are generally directed to various safety features in battery-
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`powered ride-on toy vehicles, including soft-start speed control technology, gearshift technology,
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`and wheel construction technology.
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`Dynacraft’s motion to stay this lawsuit, which comes ten months after the case was filed
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`and prior to the Patent Trial and Appeal Board (“PTAB”) having acted on any of Dynacraft’s four
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`petitions for inter partes review (“IPR”), should be denied. The PTAB is not expected to act on
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`the IPR petitions for nearly six months. Thus, any potential benefits of a stay at this stage of the
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`case are entirely speculative. It is unknown whether the PTAB will institute any of the IPRs, and
`even if any are instituted, what the scope of those IPRs might be.1
`In addition, Dynacraft is a direct competitor of Plaintiffs in the battery-powered ride-on
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`market and the harm to Plaintiffs by the requested delay will be both substantial and irreparable.
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`Plaintiffs’ right to proceed on their causes of action has already been delayed by a transfer of this
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`case based on the Supreme Court’s decision in TC Heartland, LLC v. Kraft Foods Group Brands
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`LLC, No. 16-341, 137 S. Ct. 1514 (May 22, 2017). Now, Dynacraft seeks an immediate stay
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`based on petitions for IPR it waited nearly ten months to file after Plaintiffs brought this case.
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`1 Adding to the uncertainty, the Supreme Court has granted certiorari to review whether inter
`partes review violates the Constitution by extinguishing private property rights through a non-
`Article III forum without a jury. Oil States Energy Services LLC v. Greene’s Energy Group,
`LLC., 639 Fed. App’x 639 (Fed. Cir 2016), cert. granted, 198 L. Ed. 2d 677 (Jun. 12, 2017) (No.
`16-712). So, it is unclear whether the PTAB’s IPR program will even exist through the resolution
`of Dynacraft’s IPR petitions.
`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
`
`DC01:1162944.2
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`CASE NO. 4:17-CV-03745-PJH
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`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`

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`Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 3 of 10
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`Dynacraft should not be permitted to delay this case further with a stay before the PTAB
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`even decides whether to proceed on the IPR petitions.
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`II.
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`
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`STATEMENT OF THE ISSUES
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`1.
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`Whether this litigation should be stayed pending Dynacrafts’ IPRs, where the
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`PTAB has not yet decided whether to institute any of the IPRs and is not expected to make the
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`decision for nearly 6 months.
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`III.
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`STATEMENT OF FACTS
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`
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`Plaintiffs filed this suit on January 17, 2017 in the United States District Court for the
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`District of Delaware seeking recourse for Dynacraft’s infringement of the four patents-in-suit. On
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`May 22, 2017, the Supreme Court issued its TC Heartland decision and on June 27, 2017, the
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`case was transferred to this Court. (D.I. 14-16.)
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`On October 9, 2017, on the eve of the case management conference, more than three
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`months after this case was transferred and nearly ten months after this case was filed, Dynacraft
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`filed four petitions for IPR challenging the validity of each of the patents-in-suit before the
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`PTAB. (See IPR Nos. 2018-0038, 2018-0039, 2018-0040, and 2018-0042.) Dynacraft filed the
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`instant motion to stay the next day on October 10, 2017. (D.I. 44.)
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`Mattel’s preliminary responses to each of those petitions are not due until January 2018.
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`See 37 C.F.R. § 42.107. The PTAB’s decisions whether to institute the IPRs will not issue until
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`approximately three months later, in April 2018. See 35 U.S.C. § 314(b).
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`IV. ARGUMENT
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`The three-factor test this Court uses to evaluate stay motions counsels against a stay in this
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`case because Dynacraft’s motion is premature. “The factors that courts in this district considers
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`when determining whether to stay litigation are: ‘(1) whether discovery is complete and whether a
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`trial date has been set; (2) whether a stay will simplify the issues in question and trial of the case;
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`and (3) whether a stay would unduly prejudice or present a clear tactical disadvantage to the
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`nonmoving party.’” Dicon Fiberoptics, Inc. v. Preciseley Microtechnology Corp., No. 15-cv-
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`01362-BLF, 2015 U.S. Dist. LEXIS 188626, at *2 (N.D. Cal. 2015).
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`This Court is under no obligation to stay proceedings pending parallel litigation in the
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`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
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`DC01:1162944.2
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`- 3 -
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`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`

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`Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 4 of 10
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`PTAB. Dicon Fiberoptics, 2015 U.S. Dist. LEXIS 188626, at *2. This is especially true where,
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`as here, the PTAB has not yet decided whether it will even institute any review proceeding. Aylus
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`Networks, Inc. v. Apple, Inc., No. 13-cv-4700, 2014 U.S. Dist. LEXIS 157228, at *2 (N.D. Cal.
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`2014). In fact, “the most important factor in determining whether to stay litigation pending inter
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`partes review [is] whether the PTAB has acted on the defendants’ petition for review.” Trover
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`Grp., Inc. v. Dedicated Micros USA, No. 2:13-CV-1047-WCB, 2015 U.S. Dist. LEXIS 29572, at
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`*12, *14 (E.D. Tex. 2015) (Bryson, J., sitting by designation). “[T]he majority of courts that have
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`addressed the issue have postponed ruling on stay requests or have denied stay requests when the
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`PTAB has not yet acted on the petition for review.” Id. at *15-*17.
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`This practice has been followed in numerous cases in this district, particularly where, as
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`here, the parties are competitors. See, e.g., Hewlett-Packard Co. v. ServiceNow, Inc., No. 14-cv-
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`00570-BLF, 2015 U.S. Dist. LEXIS 47754, at *10 (N.D. Cal. Apr. 9, 2015) (“The Court is
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`reluctant to derail an infringement action by a patentee against a direct competitor when, as here,
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`the Court can only speculate as to whether the PTAB will institute IPR or CBM review.”); Sage
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`Electrochromics, Inc. v. View, Inc., No. 12–cv–06441-JST, 2015 U.S. Dist. LEXIS 1056, at *17
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`(N.D. Cal. 2015); Boundaries Solutions, Inc. v. Corelogic, Inc., No. 5: 14–cv–00761–PSG, 2014
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`U.S. Dist. LEXIS 175590, at *1-*4 (N.D. Cal. 2014) (stay denied when PTAB had not yet acted
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`on IPR petition and parties were competitors).
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`A.
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`Dynacraft Cannot Establish That a Stay Will Simplify Any Issue In This Case
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`First, the “simplification of the issues” factor weighs against a stay because Dynacraft’s
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`inter partes review petitions were filed only recently. Courts have repeatedly held that this factor
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`does not weigh in favor of a stay where the PTAB has yet to decide whether to institute review
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`proceedings. See Dicon Fiberoptics, 2015 U.S. Dist. LEXIS 188626, at *2 (“Until the PTAB
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`makes a decision on whether to grant the IPR petition, any argument about whether the IPR
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`process will simplify issues in this litigation is highly speculative.”); Sage, 2015 U.S. Dist.
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`LEXIS 1056 at *8 (“SAGE’s first argument—that the potential for simplification does not weigh
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`in favor of a stay when the PTO has yet to decide whether to institute IPR proceedings—is
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`28
`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`persuasive”).
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`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
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`DC01:1162944.2
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`- 4 -
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`CASE NO. 4:17-CV-03745-PJH
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`Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 5 of 10
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`As Federal Circuit Judge Bryson recently explained, sitting by designation in the Eastern
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`District of Texas, “the ‘simplification’ factor does not cut in favor of granting a stay prior to the
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`time the PTAB decides whether to grant the petition for inter partes review.” Trover Group, 2015
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`U.S. Dist. LEXIS 29572, at *14. As Judge Bryson also noted, whether the stay will lead to
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`simplification of the issues “depends very much on whether the PTAB decides to grant the
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`petition.” Id. at *12. “[A] stay could simplify the issues in this case and streamline the trial—or
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`even obviate the need for a trial—but only if the PTAB grants the petition.” Id.; see also Capella
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`Photonics, Inc. v. Cisco Sys., No. 14-cv-03348-EMC, 2014 U.S. Dist. LEXIS 147258, at *6 (N.D.
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`Cal. 2014); TPK Touch Solutions, Inc. v. Wintek Electro-Optics Corp., No. 13-cv-02218-JST,
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`2013 U.S. Dist. LEXIS 162521, at *11 (N.D. Cal. 2013) (“[T]he filing of an IPR request by itself
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`does not simplify the issues in question and trial of the case. Ultimately, the PTO may not
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`institute IPR proceedings. Even if it does, the Court and the parties cannot know now whether the
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`claims subject to IPR will be the same claims that Plaintiff asserts here.”)
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`Dynacraft urges that the USPTO’s statistics regarding inter partes review proceedings
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`favor a stay. (D.I. 44 at 4.) That is incorrect. “[T]he overall statistics for the number of petitions
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`that are reviewed and the number of claims that are invalidated are not especially enlightening as
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`to the likely disposition of any particular patents or claims, since the likelihood of invalidation
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`depends entirely on the particulars of the patents and claims in dispute.” Trover Group, 2015 U.S.
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`Dist. LEXIS 29572, at *13. As Judge Bryson explained in circumstances similar to those here, “it
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`would be speculative for the Court to extrapolate from the statistics and conclude that it is likely
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`that the PTAB will institute inter partes review in this case and invalidate some or all of the
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`claims of the [patent-in-suit].” Id. at *13-14; see also Boundaries Solutions, 2014 U.S. Dist.
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`LEXIS 175590, at *3 (“While appreciating the statistical rate at which petitions have been
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`granted to date, this court is unwilling to assume the PTO and its Administrative Law Judges are
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`nothing more than well-educated, well-trained rubber stamps.”).
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`Moreover, the only statistics to which Dynacraft does point concern inter partes review
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`proceedings that have resulted in a written decision. By necessity, those proceedings must have
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`first been instituted by the PTAB. Dynacraft’s petitions, however, were just recently filed and will
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`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
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`DC01:1162944.2
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`- 5 -
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`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 6 of 10
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`not reach that institution milestone for another six months, if ever. Accordingly, that only 28
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`percent of all petitions filed with the PTAB result in invalidation of at least one challenged claim
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`is a more applicable PTAB statistic here. See https://www.uspto.gov/sites/default/files/
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`documents/AIA%20Statistics_March2017.pdf.
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`In every respect, the “simplification of the issues” factor cuts strongly against a stay.
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`B.
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`The Stage of the Litigation Does Not Justify Staying the Case
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`Defendant filed its IPR petitions just prior to the case management conference, ten months
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`after the complaint had been filed. While discovery has not yet begun (indeed, Dynacraft through
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`the instant motion is seeking to avoid having to provide discovery), the stage of the case alone is
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`an insufficient basis for a stay, especially in cases where, as here, petitions for inter partes review
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`were only recently filed. See Dicon Fiberoptics, 2015 U.S. Dist. LEXIS 188626 at *3-*4;
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`Boundaries Solutions, 2014 U.S. Dist. LEXIS 175590 at *3; TPK Touch Solutions, 2013 U.S.
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`Dist. LEXIS 162521 at *9-*10, *19.
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`Additionally, the progress of this case has already been forestalled by no fault of the
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`Plaintiffs. Plaintiffs filed their complaint on January 17, 2017 in the District of Delaware, which
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`at the time of filing was a proper venue. (D.I. 1.) Four months later, the Supreme Court issued its
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`TC Heartland decision modifying the requirements for venue in patent cases. Before answering
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`Plaintiffs’ complaint, Dyancraft moved for a transfer based on the decision and, without
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`opposition from Plaintiffs, the Delaware Court subsequently ordered the case be transferred to
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`this Court on June 26, 2017. (D.I. 15). But for the intervening change in the law over which
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`Plaintiffs had no control, the instant case could very well have progressed well into discovery in
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`the ten months since it was filed.
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`C.
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`A Stay Will Unduly Prejudice Plaintiffs
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`The third factor—“whether a stay would unduly prejudice or present a clear tactical
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`disadvantage to the nonmoving party”—weighs strongly against a stay because Dynacraft is a
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`direct competitor of Plaintiffs. Staying litigation is disfavored in situations where the parties are
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`competitors and the PTAB has not yet acted on petitions for IPR. Hewlett-Packard, 2015 U.S.
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`Dist. LEXIS 47754, at *9 (“The Court is reluctant to derail an infringement action by a patentee
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`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
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`DC01:1162944.2
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`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 7 of 10
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`against a direct competitor when, as here, the Court can only speculate as to whether the PTAB
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`will institute IPR or CBM review.”).
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`Courts have repeatedly recognized that when the parties to a patent infringement action
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`are direct competitors, the plaintiff is unduly prejudiced by a denial of timely enforcement of its
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`patent rights. See, e.g., Sage, 2015 U.S. Dist. LEXIS 1056, at *17 (refusing to stay action,
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`reasoning that because parties were direct competitors, the relationship of the parties weighed
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`heavily in favor of a finding that undue prejudice would result from a stay); Netlist, Inc. v. Smart
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`Storage Sys., No. 13-cv-5889-YGR, 2014 U.S. Dist. LEXIS 116878, at *3 (N.D. Cal. 2014);
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`TPK, 2013 U.S. Dist. LEXIS 162521, at *17 (“Because [the parties] are direct competitors, the
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`risk of prejudice is higher to the non-moving party than it would be otherwise.”) “Unlike patent
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`infringement actions involving non-practicing entities, infringement among competitors can cause
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`harm in the marketplace that is not compensable by readily calculable money damages.” Avago
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`Techs. Fiber IP (Sing.) Pte. Ltd. v. IPtronics Inc., No. 10-CV-02863-EJD, 2011 U.S. Dist. LEXIS
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`82665, at *16 (N.D. Cal. 2011).
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`There can be no dispute that the parties are direct competitors in the market for children’s
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`battery-powered ride-on vehicles. Dynacraft sells battery-powered ride-on products including a
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`24V Disney Princess Carriage ride-on in the United States, D.I. 18 at 8, which compete with
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`Fisher-Price’s ride-on products sold under the “Power Wheels” brand name. In particular,
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`Walmart’s website lists Dynacraft’s 24V Disney Princess Carriage ride-on product side-by-side
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`with a number of Power Wheels ride-on products. Uhr Decl. Ex. A. Dynacraft’s website confirms
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`that its 24V Disney Princess Carriage ride-on product is a “Walmart Exclusive.” Uhr Decl. Ex. B.
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`Therefore, not only does each party sell battery-powered ride-on products, but they compete for
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`the same shelf space.
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`In an effort to advance its market position against competitors such as Dynacraft, Fisher-
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`Price spent significant sums of money researching and developing a new line of battery-powered
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`ride-on products with electronic speed controls that, inter alia, practice the technology of the ’684
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`and ’978 asserted patents. (D.I. 1 at ¶ 17.) Just as Fisher-Price’s new line was reaching market,
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`Dynacraft released its own products with infringing electronic speed control circuits. Dynacraft
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`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
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`DC01:1162944.2
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`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 8 of 10
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`was thus immediately able to exploit the value of the asserted patents at Fisher-Price’s expense
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`without making the same investment. Each passing day that Dynacraft continues to market the
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`infringing products results in unrealized market share for Plaintiffs.
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`The prejudice to Plaintiffs is further exacerbated by the fact that, given the infancy of the
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`IPR proceedings, it will likely be years before they conclude. Dynacraft waited almost ten months
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`after Plaintiffs initiated this action to file its October 9, 2017 IPR petitions. Mattel may file its
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`preliminary patent owner’s response within three months of this filing date; the PTAB then has
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`three months (April 2018) in which to decide whether to institute the IPRs. See 35 U.S.C. §
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`314(b). If, for instance, one or two of the IPRs are instituted, the PTAB then would have twelve
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`months to issue its decision, a deadline which can be extended by up to six months, possibly
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`extending the final decision to October 2019. 35 U.S.C. § 316(a)(11). Both parties then have a
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`right to request rehearing of the PTAB decision (37 C.F.R. § 41.52(a)(1)) and a right to appeal the
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`PTAB’s final decision to the Federal Circuit (35 U.S.C. §§ 319, 141(c)), which could add another
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`two years, extending the proceeding into 2021. If these proceedings were stayed now, Dynacraft’s
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`infringement of all of the patents could continue unabated for a significant period of time.
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`Dynacraft would be able to continue to infringe for the entire commercial life cycle of the
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`accused product.
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`Dynacraft argues that the prejudice a stay would inflict on Plaintiffs can be mitigated by
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`monetary relief, but that argument is flawed because it flatly ignores Plaintiffs’ prayer for
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`injunctive relief. (D.I. 1 at 11.) Indeed, the proposed stay would strip Plaintiffs of their right to
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`pursue timely enforcement of their right to exclude, which is effectively Plaintiffs’ only tool for
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`preventing the substantial harm Dynacraft continues to cause. See Avago Technologies, 2011 U.S.
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`Dist. LEXIS 82665, at *16. Further, Dynacraft’s motion offers no evidence that it will, in fact,
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`have the ability to pay a large monetary award. Monetary damages that are uncollectable would
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`not mitigate Plaintiff’s injury.
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`Allowing a competitor to continue to market and sell infringing products for months—let
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`alone years—can be devastating for a patent owner. Dynacraft’s motion should be denied for this
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`28
`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`reason alone.
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`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
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`DC01:1162944.2
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`- 8 -
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`CASE NO. 4:17-CV-03745-PJH
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`

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`Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 9 of 10
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`V.
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`CONCLUSION
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`For the foregoing reasons, Plaintiffs respectfully request that Dynacraft’s Motion to Stay
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`be denied.
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`Dated: October 24, 2017
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`Respectfully submitted,
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`Michael Zachary (CA SBN 112479)
`mzachary@andrewkurthkenyon.com
`ANDREWS KURTH KENYON LLP
`1801 Page Mill Road
`Palo Alto, CA 94304
`Telephone: (650) 384-4683
`Facsimile: (650) 384-4701
`
`John R. Hutchins (pro hac vice)
`jhutchins@andrewskurthkenyon.com
`ANDREWS KURTH KENYON LLP
`1350 I Street, NW, Suite 1100
`Washington, DC 20005
`Telephone: (202) 662-2700
`Facsimile: (202) 662-2739
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`By: /s/ Michael Zachary
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`Attorneys for Plaintiffs
`Fisher-Price, Inc. and Mattel, Inc.
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`28
`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
`
`DC01:1162944.2
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`- 9 -
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`CASE NO. 4:17-CV-03745-PJH
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`

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`Case 4:17-cv-03745-PJH Document 48 Filed 10/24/17 Page 10 of 10
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`CERTIFICATE OF SERVICE
`The undersigned hereby certifies that on October 24, 2017, the foregoing document was
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`filed with the Clerk of the U.S. District Court for the Northern District of California, using the
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`court’s electronic case filing (ECF), in compliance with Civil L.R. 5-1. The ECF sends a Notice
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`of Electronic Filing (NEF) to all parties and counsel who have appeared in this action and who
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`have consented under Civil L.R. 5-1 to accept that NEF as service of this document.
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` _____
`/s/ Michael Zachary
`Michael Zachary (CA SBN 112479)
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`28
`ANDREWS KURTH
`KENYON LLP
`PALO A LTO
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`Plaintiffs’ Opposition to
`Dynacraft’s Motion to Stay
`
`DC01:1162944.2
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`- 10 -
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`CASE NO. 4:17-CV-03745-PJH
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