Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 1 of 29 PageID #: 2415
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CA NO. 16-453-RGA,
`16-454-RGA, 16-455-RGA
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`February 17, 2017
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`11:06 o'clock a.m.
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`: : : : : : : : : : :
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`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
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`ACTIVISION BLIZZARD INC., et
`al.,
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`Defendants,
`.............................
`
`TRANSCRIPT OF SCHEDULING CONFERENCE
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`POTTER, ANDERSON & CORROON
`BY: PHILLIP A. ROVNER, ESQ
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CA NO. 16-453-RGA,
`16-454-RGA, 16-455-RGA
`
`February 17, 2017
`
`11:06 o'clock a.m.
`
`: : : : : : : : : : :
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD INC., et
`al.,
`
`Defendants,
`.............................
`
`TRANSCRIPT OF SCHEDULING CONFERENCE
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`POTTER, ANDERSON & CORROON
`BY: PHILLIP A. ROVNER, ESQ
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 2 of 29 PageID #: 2416
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`For Defendants:
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`-and-
`KRAMER LEVIN NAFTALIS & FRANKEL
`BY: PAUL J. ANDRE, ESQ
`BY: AARON M. FRANKEL, ESQ
`
`MORRIS, NICHOLS, ARSHT & TUNNELL
`BY: JACK B. BLUMENFELD, ESQ
`-and-
`WINSTON & STRAWN
`BY: DAVID P. ENZMINGER, ESQ
`BY: MICHAEL A. TOMASULO, ESQ
`
`Court Reporter:
`
`LEONARD A. DIBBS
`Official Court Reporter
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 3 of 29 PageID #: 2417
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`P R O C E E D I N G S
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`(The proceedings occurred at 11:06 o'clock a.m. as
`
`follows:)
`
`THE COURT: All right.
`Good morning. Please be seated.
`So this is Acceleration Bay v. Activision, Civil Action
`No. 16-453, and also Electronics Arts, No. 15-454, and also
`Take-Two Interactive Software, No. 16-455.
`Mr. Rovner, good morning.
`MR. ROVNER: Good morning, your Honor.
`With me for plaintiff is Paul Andre and Aaron Frankel
`from Kramer Levin.
`MR. ANDRE: Good morning, your Honor.
`THE COURT: Good morning to you all.
`Mr. Blumenfeld?
`MR. BLUMENFELD: Good morning, your Honor.
`Jack Blumenfeld for all defendants along with David
`Enzminger and Mike Tomasulo from Winston & Strawn.
`THE COURT: All right.
`So, you know, Mr. Blumenfeld and Mr. Rovner have heard
`me many times start off by thanking counsel for their efforts to
`reach agreement and how much I appreciate it. I'm not going to
`say that today.
`But before we got to the Scheduling Order, I was just
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 4 of 29 PageID #: 2418
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`wondering why, not withstanding the fact that I referred
`everything to the Special Master here, I couldn't actually just
`resolve this, because it didn't seem like it was very difficult,
`so it might fall within my area of competence.
`What plaintiff proposed, as I understand it, is that
`simply because somebody worked on the IPR, which now it is
`represented you cannot change the claims on, does not in any way
`impede them from working on a going forward basis, is that
`right?
`
`MR. FRANKEL: Your Honor, the issue is that the -- we
`think the people who have been working on the IPRs should now be
`able to access source code because --
`THE COURT: Right, I get that, but, I mean, it's
`because the IPR is over.
`MR. ANDRE: It's not over, your Honor, but the point
`where you can amend is over.
`THE COURT: Right.
`MR. ANDRE: Yes.
`THE COURT: So is there something wrong with the theory
`that what you -- why you sometimes restrict people, because they
`have decision-making capabilities that could somehow, you know,
`impact the case, aren't we past that point?
`MR. ENZMINGER: We're not past that point. That's the
`problem, your Honor.
`The Motions to Amend the claims are still pending, so
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`there's no certainty as to how the Patent Office is going as to
`handle it.
`THE COURT: Are the Motions to Amend still pending?
`MR. ANDRE: We filed the motions. All the oral
`argument is done. We can't do anything else. There's nothing
`else we can affect the decision. The amendment have already
`been made. The proposed amendments have been made to the claims
`and we can't change those.
`THE COURT: So is there a timetable for when somebody
`in the PTO, or I guess in the PTAB, or somewhere is going to
`rule on these?
`MR. ANDRE: March 2nd, I believe. Less than two weeks.
`The PTAB is statutorily required to come up with a
`decision on the IPRs by, I think, March 2nd or 3rd. You guys
`correct me if I'm wrong, but I think it's those dates.
`MR. TOMASULO: Mid-March. There are two sets of
`decisions.
`THE COURT: And, so, when the PTAB actually rules, what
`would your position be then?
`MR. ENZMINGER: It depends on how the PTAB rules.
`THE COURT: Let's say they -- why does their ruling
`make a difference?
`MR. ENZMINGER: Suppose they ask for additional
`briefing or something?
`MR. TOMASULO: Or they appeal?
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 6 of 29 PageID #: 2420
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`THE COURT: All right.
`So here's the thing is, I'm perfectly willing to put
`this in the Protective Order, what you're asking for, but then
`you are stuck if, in fact, there is something down the road
`where people want to change.
`In other words upon the representation that there is
`absolutely nothing that we can do, or will do in the future that
`can, you know, risk inadvertent disclosure of the source code,
`I'm perfectly happy to let you proceed, but you kind of perhaps
`do it at your reason risk.
`MR. ANDRE: We're willing to take that risk, your
`
`Honor.
`
`THE COURT: All right.
`Well, so, if you submit the Protective Order without
`the little thing underlined, I will sign it.
`MR. ANDRE: Thank you, your Honor.
`THE COURT: All right.
`So on the Scheduling Order, where to begin?
`So I did look through it, and because there is so much
`disagreement, I didn't think it was actually necessarily
`particularly a good idea for me just to say, here's the final
`date. You all work it out. I don't have confidence you can.
`So let me just start going through the things that I
`noticed, or made some kind of -- well, actually, before I start,
`has anything happened since you submitted this that you do want
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`to tell me about?
`MR. ANDRE: Your Honor, I would just say this.
`If we get the trial date, then everything else kind of
`stems backwards from that. I think that's the biggest dispute.
`Once we have the trial date, frankly, the rest of the dates fall
`in line. I think we can reach agreement at that point.
`That's the biggest issue. Some of these other
`positions we have not reached agreement on. For example, the
`very first one here about the damages.
`THE COURT: Okay. So I appreciate what you say.
`So do you agree if I pick the end date, you can pick
`the intermediate dates?
`MR. ENZMINGER: Yes.
`THE COURT: Okay. All right.
`Well, we'll get to that.
`So let's go through the other things. There's this
`paragraph on Page 2 about what defendant's position is. And I
`thought that there were three different things in this one
`paragraph.
`One is, plaintiff shall not be entitled to seek damages
`for infringement prior to the date the Complaints were served in
`2015 cases.
`I take it that part you don't have a disagreement with?
`MR. ANDRE: I don't, your Honor. I made a
`representation to the Court and I'm fine with that.
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`THE COURT: Right.
`So then there's a second sentence, which is -- does not
`necessarily follow from the first sentence -- which is, absent a
`showing of good cause, follow-up discovery shall be limited to
`the period after these dates.
`Now, maybe if you meant follow-up damages discovery,
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`possibly?
`
`But as I recall from other things, there's possibly,
`you know, development work, there may be, you know, things that
`occur before then -- probably not sales -- but there are things
`that could occur before then that are relevant to infringement
`issues, possibly invalidity issues, and possibly damages issues,
`right?
`
`MR. ENZMINGER: Right.
`THE COURT: So what are you trying to cut off?
`MR. ENZMINGER:
`Damages issues.
`And let me be specific.
`The very first sentence of this says that they intend
`to reinstate a Motion to Compel. That Motion to Compel, which
`they've advised us that they intend to reinstate, expressly
`seeks damages information 2009 to the present.
`THE COURT: That seems to me -- by the way, you are Mr.
`Enzminger, right?
`MR. ENZMINGER: Enzminger, yes.
`THE COURT: Sorry. You know, I'm not going to rule on
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 9 of 29 PageID #: 2423
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`appeals that, you know, among other things I haven't looked
`at -- or appeals isn't the right word -- objections to what the
`Special Master has ordered.
`And, so, it could be just as a hypothetical matter that
`because of the passage of time, and changes in positions, or
`whatever, that things the Special Master ordered besides
`whatever objections might still be good, that there are some
`things that have become moot.
`And I take it that's what you're saying is, the damages
`cut-off makes the damages information that the Special Master
`ordered for 2009 moot and irrelevant. Maybe that's true --
`MR. ENZMINGER: Didn't order it. They're seeking it
`
`now.
`
`THE COURT: Okay.
`Well, you know, it is -- you know, I'm not going to
`rule on that right now.
`Is there anything you want to say about that?
`MR. ANDRE: Yes, your Honor. I think that we can bring
`up the Special Master, not bother you with it, but the position
`obviously is, just because we only seeks damages from the point
`where we actually gave notice, the actual sales figures and
`things that go into growth, and the things that damages experts
`use before that are relevant.
`We can bring that up with the Special Master and let
`him decide it.
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`THE COURT: Well, and, so, you know, that's what I'm
`inclined to do is, I turn this over to the Special Master for
`multiple reasons, some of them even good reasons.
`I think that these are the -- these are discovery
`issues, not really scheduling issues, so my inclination is to
`just cross out the second sentence of defendant's position and,
`you know, leave the question of what discovery is relevant given
`what the damages time period is, and whatever else up for the
`Special Master to figure out, okay?
`MR. ENZMINGER: Okay.
`MR. TOMASULO: That's fine, your Honor.
`MR. ANDRE: That's fine, your Honor.
`THE COURT: And then there is the third sentence, which
`is, additional products may not be added in these cases without
`leave of the Court.
`Is that a hypothetical sentence or is that something
`where you are expecting right now that there is more products
`being added?
`MR. TOMASULO: They are adding more -- they have added
`2017 versions of products, and proposed a schedule that ends in
`no time at all. We don't have infringement contentions for
`those new products.
`MR. ENZMINGER: We actually don't have infringement
`contentions for the old products.
`THE COURT: Why don't we do this?
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`I'm going to set a schedule in the question of whether
`new products can be added. That is, again, something for the
`Special Master to figure out.
`I would just say that there comes a point, if you have
`a trial date, when you have to stop adding new products, so you
`can get a fixed target to try a case about. I don't know what
`that date is, because among other things, we don't have a trial
`date.
`
`And, again, I think the Special Master could probably
`help you reach a resolution on that.
`MR. TOMASULO: That's fine, your Honor.
`MR. ANDRE: And just to be clear, it's the same
`products with the new -- they update them every year. So it's
`the same product, just updated each year.
`THE COURT: So maybe that's all good things to talk to
`the Special Master about is, there's no burden, nothing really
`to do, change the -- I mean, okay -- so I'm going to cross that
`out, too.
`
`All right.
`So then we'll -- the let me skip to the next thing.
`So I think that means that pretty much all the
`disagreement on Page 3, above the discovery cutoff part, isn't
`that all stuff for the Special Master to figure out?
`MR. ANDRE: That's correct, your Honor.
`MR. ENZMINGER: That's fine, your Honor.
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`THE COURT: Okay.
`MR. ENZMINGER: So we're X'ing out everything above
`discovery cutoff, is that correct?
`THE COURT: I think so, yes.
`All right.
`So on Page 4 near the bottom there's talk about --
`practically begs to be crossed out, you know, e-mail custodians,
`search terms.
`Do you agree that I can just cross out that paragraph
`plus the defendants' paragraph at the top of the next page,
`okay?
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`MR. ENZMINGER: Yes, your Honor.
`THE COURT: You're surprisingly more reasonable in
`
`person.
`
`All right.
`Let's move on.
`Oh, so have you all had disputes with the Special
`Master before about the length of time of depositions or is that
`--
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`MR. ENZMINGER: No, your Honor.
`THE COURT: You haven't quite gotten that far yet.
`MR. ENZMINGER: We have not gotten that far.
`THE COURT: If you both want me to resolve the
`deposition issue right now, I'm happy to do that if you -- one
`or the other of you wants to bring it up with the Special
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`Master, I would do that.
`Do you want me to resolve the issue is now?
`MR. ANDRE: I think so, your Honor.
`MR. ENZMINGER: That's fine. It would be one less
`
`issue.
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`MR. TOMASULO: I think so, your Honor.
`THE COURT: Okay. All right.
`So the first thing is, plaintiff says the two days of
`deposition will be scheduled within a reasonable amount of time
`for each other to alleviate an undue burden on the inventors.
`You know, my main objection to that is, I'm not
`actually sure that that's enforceable. You know, I take it what
`you're saying is, you don't want inventor -- we're talking about
`inventors here, right?
`MR. ANDRE: Two inventors, yeah.
`THE COURT: Yeah, you don't want an inventor to be
`deposed for seven hours a few weeks from now and then seven
`hours again in early 2018?
`MR. ANDRE: Or conversely, seven hours on Tuesday and
`seven hours on Wednesday, because it's a bit exhausting for a
`layperson to go through two consecutive.
`THE COURT: I'm sure it is, but isn't this the kind of
`thing that you all, because, you know, maybe some inventor wants
`to do two days in a row? Isn't this the kind of thing that you
`all sort of worked out based on individual circumstances as you
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`go down the road?
`MR. FRANKEL: That's correct, your Honor.
`And this provision was in the first Scheduling Order in
`the previous cases. I just don't see the reasons to take it out
`here and I would also note that the inventors have already been
`deposed in the IPR proceedings, and we've incorporated those
`transcripts in this case.
`So it just seems strange to not take a reasonable
`approach here to minimize burden.
`THE COURT: Well, see, the thing is, I would like you
`all to take a reasonable approach, but I'm not sure -- you know,
`I would expect that if you said inventor A does not want to be
`deposed for seven hours on Tuesday and seven hours on Wednesday
`because it will exhaust him, her, or it, that that would be the
`kinds of things that the defendants would agree to?
`MR. TOMASULO: That's correct, your Honor.
`MR. ANDRE: You can take that sentence out. I mean, I
`get what you're saying.
`I think this is something that was a vestige from a
`previous order, and we just -- they wanted to take it out, and
`we wanted to leave it in for more guidance than enforceability.
`THE COURT: All right. All right.
`So the next thing was the business about counting
`depositions against multiple defendants, if multiple defendants
`are participating in the deposition.
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 15 of 29 PageID #: 2429
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`And here did this come up before?
`MR. TOMASULO: This is anticipatory. We learned that
`there's a lot of third-party discovery that will need be to
`taken because the patents are 20 years old, and there were, you
`know, efforts to commercialize them.
`There's just a lot of probably small depositions that
`need to be taken. And ten depositions isn't going to do it.
`So it's just a question of -- we thought this would be
`uncontroversial. We're not trying to game the system. We don't
`want to take -- it's just a question of how -- you know, if we
`take a third-party deposition of Boeing, or someone that Boeing
`offered their licensed patents to, we would like to be able to
`use that transcript in all three cases.
`THE COURT: Is there a time limit on how many hours, or
`was this always just ten depositions maximum?
`MR. TOMASULO: It was never -- it was -- what we said
`originally was that your original Order was that the -- Federal
`Rules of Civil Procedure would apply to all three cases, so it
`was never given more specificity than that.
`THE COURT: Okay.
`MR. FRANKEL: Your Honor, if we can make this provision
`go both ways?
`For example, if Acceleration Bay takes a deposition
`about prior art, that it wouldn't count as three depositions,
`because there's three different cases. If we can make it both
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 16 of 29 PageID #: 2430
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`ways, I think we can agree that if we need some additional
`depositions given the third party issues, then we'd be fine.
`MR. TOMASULO: Of course we didn't intend it to be
`unilateral.
`THE COURT: Okay. So you all understand what you just
`said to each other?
`I think I barely do.
`But, basically, you've just resolved this one.
`MR. TOMASULO: I think that's correct. I think what --
`we would just leave in defendants' position with the
`understanding that it's bilateral.
`THE COURT: Okay. I can understand that, if you want
`to add in --
`MR. TOMASULO: We can modify it.
`THE COURT: Why don't you add a word or two to make it
`clear that that's the case?
`MR. TOMASULO: Okay.
`THE COURT: Okay. So, thank you for that suggestion,
`Mr. Frankel.
`All right.
`Then there was one more thing here, which I have to say
`seemed kind of reasonable to me, in terms of providing dates.
`MR. TOMASULO: That's fine with us, your Honor.
`MR. ENZMINGER: Yes, the issue there is that that is
`connected to an another similar provision that they rejected on
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 17 of 29 PageID #: 2431
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`Page 8.
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`THE COURT: Is that the Markman thing?
`MR. ENZMINGER: Yes, the experts. Providing the dates
`availability for expert witnesses.
`THE COURT: Okay. You know, I wrote there, "good
`idea," too.
`Wait a second.
`Yeah, so there any reason why that shouldn't be
`bilateral also?
`MR. ANDRE: That's bilateral. That's fine, your Honor.
`THE COURT: Okay.
`Good work there.
`All right.
`So moving along at the bottom -- so I just resolved the
`Protective Order matter, so you can cross that out of the
`Scheduling Order.
`Okay. Claim construction.
`I have a note in the -- oh, okay, that's just a date
`
`thing.
`
`Then the dispute on Page 8 that's labeled "Defendants'
`Position," we just resolved that with the bilateral thing.
`So we have a hearing on claim -- so I just made the
`note for Paragraph 8. I don't think June 22nd, 2017, is a good
`idea, because I think I'm going to be in trial on something else
`then, but that's -- but, in any event, let's not talk about
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 18 of 29 PageID #: 2432
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`dates anymore.
`Okay. We have expert depositions and the length.
`I have to tell you that looking at that, my initial
`reaction was that seemed like an awful lot of deposition hours.
`I guess this is plaintiffs's position.
`If the expert filed an opening report on infringement,
`and a reply report on infringement, that would mean the expert
`gets to be deposed for 14 hours?
`MR. FRANKEL: Your Honor, that would be infringement in
`one case, would be seven hours of deposition. Since we're doing
`reply reports, that wasn't meant that there would be 14 hours
`just on infringement.
`So, if an expert does infringement and validity, then
`that would be 14 hours.
`THE COURT: Oh, okay.
`So reply reports don't count?
`MR. FRANKEL: Correct.
`THE COURT: Well, except that -- you know, I guess
`actually -- I just realized -- your math is not so hot, because
`it says a total of 21 hours of deposition and then helpfully it
`says -- well, actually, it does, it says seven hours for each of
`the reports on infringement.
`I take it two expert reports on infringement, that
`meant one for Activision and one for Electronic Arts?
`MR. FRANKEL: Correct, your Honor.
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 19 of 29 PageID #: 2433
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`THE COURT: Okay. All right.
`And, so, I guess that actually makes sense to me,
`because presumably whatever it is Activision makes is a
`completely different infringement question than whatever it is
`Electronic Arts makes.
`All right.
`So, in any event, I guess what plaintiff had, they have
`their paragraph there. It seemed like defendants generally
`wanted to, at least in terms of the man hours for doing this,
`let that be decided later, and if necessary resolved by the
`Special Master.
`MR. ENZMINGER: Essentially, yes. Our concern is the
`volume of non-essential material in the expert reports.
`THE COURT: Well, that has to do with the seven hours
`per hundred pages of report?
`MR. ENZMINGER: Yes.
`THE COURT: So, you know, I guess what I'm thinking is
`this is, you know, I think maybe it make sense to put this off,
`because you really don't know what you're going to get from
`either side, and maybe you'll be able come to some agreement.
`I think the word "bilateral" is a useful word to keep
`in mind for these things.
`But, in any event, you can come to some agreement, and
`if it doesn't work out, you can't work it out between
`yourselves, you can work it out with the Special Master, is that
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 20 of 29 PageID #: 2434
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`all right?
`MR. ANDRE: Yes, your Honor.
`MR. TOMASULO: Yes, your Honor. We'll take out the
`entirety of -- from the plaintiff's position down to objections
`of the expert testimony?
`THE COURT: Yes.
`All right.
`I think that's -- oh, yeah.
`So Paragraph 16, I see the words "eight day jury trial"
`in there. I'm kind of imagining the last time I did this I
`probably said five day jury trial.
`MR. TOMASULO: Well, actually, I did say eight day, but
`we were going to raise that with you with the understanding that
`that's not the normal length for a trial, but the last Order did
`say eight days, but, you know --
`THE COURT: I must have not been paying attention.
`All right.
`Well, is there any reason why we can't be aiming for a
`five-day jury trial here?
`MR. ANDRE: That's fine with us, your Honor.
`I've not tried a case in front of your Honor,
`unfortunately. As long as it doesn't include like the jury
`selection process and all that, I mean, five actual days of --
`THE COURT: Generally, Monday to Friday would be ideal,
`because jury selection and the start of the case usually takes
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 21 of 29 PageID #: 2435
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`two hours or less.
`So, basically, you can try the case all week. And if
`we need to have closing arguments on the Monday, we can have
`closing arguments on the Monday.
`MR. TOMASULO: May I make one observation about the
`first trial, which is Activision?
`The three sets of accused products are really three
`disparate business units, including a third party.
`So it may be that we do -- depending on the scope of
`the case at that time -- do need to request more trial time
`because there could be as many as six patents and three
`non-overlapping sets of infringement contentions.
`THE COURT: Well, so, here's -- this is what I'd like
`to do is, I would like to write in five days. That's without
`prejudice to the kinds of issues you're talking about.
`And I know -- I mean, I have -- there's not going to be
`six patents when we try this case. You're going to have to get
`rid of some of them. We'll figure out how many later on.
`We're not going to do six at once. That's, in my
`opinion, ridiculous, but that may actually have not much to do
`with the time in the case anyhow.
`MR. ANDRE: It's our burden of prove and we understand
`that. We try a lot of cases. And if we're on the clock, we've
`got to get our case in.
`So --
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 22 of 29 PageID #: 2436
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`THE COURT: All right.
`MR. ANDRE: -- the pure logistics of trying a case in
`five days will force us to be very streamlined.
`THE COURT: All right.
`Well, any event, with the sort of understanding that
`I've said here, let's cross this out and make it five, but it is
`something that -- and this may not be the proper use of the
`phrase "at the margins" it's something we can play with.
`But it's not going to be, you know, let's have a nine
`day trial. That's not going to happen.
`All right.
`So that leaves the question, I think, of when these
`trials should actually be scheduled, because I think everything
`else then is stuff that you said you can work out between
`yourselves.
`So, first off, I note that you've got these things
`scheduled in two months in between each other. And even though
`defendants -- that's the plaintiff's schedule -- the defendants'
`schedule is slightly different.
`But, again, there is sufficient time in between to have
`some chance to appreciate what happened in the one that went
`before.
`
`And, so, there's basically a four-month difference -- a
`four to three-month difference in the schedule here.
`Any suggestions as to why I should pick one side or the
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 23 of 29 PageID #: 2437
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`other?
`
`MR. ANDRE: Your Honor, the date from your point of
`view to some degree, because we filed the original case in March
`of 2015, we wanted to get it in the before the three-year
`anniversary.
`THE COURT: I don't care whether it shows up on the
`
`list.
`
`MR. ANDRE: Okay, okay. But from our perspective, we
`think it's sufficient time. I wouldn't mind splitting the baby
`here and finding someplace in between, but it really depends on
`your Honor's calendar and what looks like --
`THE COURT: All right.
`So we have an offer of split the baby.
`MR. ENZMINGER: Yeah, we would actually resist that,
`your Honor, for a couple of reasons.
`First, our schedule largely tracks what the original
`schedule would have been had there be no -- had that case
`proceeded.
`THE COURT: When you say "largely tracks," had I
`scheduled the trial for June of 2 --
`MR. ENZMINGER: No. I mean, the dates that we had
`agreed to based on the time of events from --
`THE COURT: In other words, from -- I think I
`understand what you're saying.
`MR. ENZMINGER: So, for example, on the plaintiff's
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 24 of 29 PageID #: 2438
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`schedule, there would be -- well, we can look at it -- but
`there's a very short time between expert discovery and there's
`only two weeks, I think, for Dispositive Motions. And then the
`Court only has a month over December to decide all the
`Dispositive Motions.
`THE COURT: All right.
`Hold on a minute. Let me --
`MR. ENZMINGER: Our --
`THE COURT: Hold on, Mr. Enzminger.
`MR. ENZMINGER: Yes.
`(Pause)
`THE COURT: All right.
`Well, I think there is a -- of course, actually, Mr.
`Andre's split the baby I think takes care of the part that you
`just said that caught my attention, which is not allowing me
`enough time to decide the Dispositive Motions.
`You've also said that the Dispositive Motions are due
`ten days after the -- so I think you could give yourself another
`20 days for the Dispositive Motions and move -- and still split
`the baby and give me enough time for the Dispositive Motions.
`MR. ENZMINGER: That's only one crammed date.
`The other one is the date for the final assertion of
`claims after the Markman Hearing and the opening of expert
`reports.
`
`You know, the reality is, these patents are 15 years
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`Case 1:16-cv-00455-RGA Document 55 Filed 02/23/17 Page 25 of 29 PageID #: 2439
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`old. The plaintiff doesn't make products.
`So, you know, the difference in two months or three
`months doesn't make a bit of difference to the plaintiff. And
`we just think that if we have a date -- we've already provided a
`very aggressive schedule -- and we think that providing an even
`more aggressive schedule will unnecessarily compress the parties
`for no real reason.
`MR. ANDRE: Your Honor, I think this is something that
`doesn't effect the Court, the opening of expert reports. This
`is a compression of their own making.
`We're willing to go forward with it. We have the
`initial reports of non-infringement, which presses us more than
`them, because their invalidity challenge they've already taken
`their best shot at the IPRs, so I don't expect there to be a
`whole lot of issues left on that one.
`THE COURT: All right.
`I think you guessed wrong on that.
`MR. ANDRE: I'm hoping the Federal Circuit is going to
`come back and change that, but we'll see.
`THE COURT: Well, that could be.
`I do appreciate the chart being submitted. I'm just
`trying to make sense of it.
`Well, so, actually, even the defendants have a pretty,
`you know, final election Asserted Prior Art of October 16th,
`opening expert reports, November 1st, so -- I'm sorry, you were
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`going to say?
`MR. BLUMENFELD: Your Honor, I think we're at the same
`point. The big concern we had was they proposed -- and I don't
`know what date we're going to have the Markman hearing -- but
`they proposed essentially six weeks between the Markman Hearing
`and opening expert reports.
`And, again, that puts a lot of pressur
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