`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 1 of 9 PagelD #: 18004
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`EXHIBIT B
`EXHIBIT B
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`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 2 of 9 PageID #: 18005
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` UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
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` 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,
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` Plaintiff,
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`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
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`APPEARANCES:
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`For Plaintiff: POTTER, ANDERSON & CORROON
` BY: PHILLIP A. ROVNER, ESQ
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` -and-
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` KRAMER LEVIN NAFTALIS & FRANKEL
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` BY: PAUL J. ANDRE, ESQ
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` BY: AARON M. FRANKEL, ESQ
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`For Defendants: MORRIS, NICHOLS, ARSHT & TUNNELL
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` BY: JACK B. BLUMENFELD, ESQ
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` -and-
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` WINSTON & STRAWN
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` BY: DAVID P. ENZMINGER, ESQ
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` BY: MICHAEL A. TOMASULO, ESQ
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` Official Court Reporter
`1 of 13 sheets
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`Court Reporter: LEONARD A. DIBBS
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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
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`follows:)
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`THE COURT: All right.
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`Good morning. Please be seated.
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`So this is Acceleration Bay v. Activision, Civil Action
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`No. 16-453, and also Electronics Arts, No. 15-454, and also
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`Take-Two Interactive Software, No. 16-455.
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`Mr. Rovner, good morning.
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`MR. ROVNER: Good morning, your Honor.
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`With me for plaintiff is Paul Andre and Aaron Frankel
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`from Kramer Levin.
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`MR. ANDRE: Good morning, your Honor.
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`THE COURT: Good morning to you all.
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`Mr. Blumenfeld?
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`MR. BLUMENFELD: Good morning, your Honor.
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`Jack Blumenfeld for all defendants along with David
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`Enzminger and Mike Tomasulo from Winston & Strawn.
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`THE COURT: All right.
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`So, you know, Mr. Blumenfeld and Mr. Rovner have heard
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`me many times start off by thanking counsel for their efforts to
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`reach agreement and how much I appreciate it. I'm not going to
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`say that today.
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`But before we got to the Scheduling Order, I was just
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`wondering why, not withstanding the fact that I referred
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`everything to the Special Master here, I couldn't actually just
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`resolve this, because it didn't seem like it was very difficult,
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`so it might fall within my area of competence.
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`What plaintiff proposed, as I understand it, is that
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`simply because somebody worked on the IPR, which now it is
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`represented you cannot change the claims on, does not in any way
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`impede them from working on a going forward basis, is that
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`right?
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`MR. FRANKEL: Your Honor, the issue is that the -- we
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`think the people who have been working on the IPRs should now be
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`able to access source code because --
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`THE COURT: Right, I get that, but, I mean, it's
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`because the IPR is over.
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`MR. ANDRE: It's not over, your Honor, but the point
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`where you can amend is over.
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`THE COURT: Right.
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`MR. ANDRE: Yes.
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`THE COURT: So is there something wrong with the theory
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`that what you -- why you sometimes restrict people, because they
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`have decision-making capabilities that could somehow, you know,
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`impact the case, aren't we past that point?
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`MR. ENZMINGER: We're not past that point. That's the
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`problem, your Honor.
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`The Motions to Amend the claims are still pending, so
`02/23/2017 10:34:05 AM
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`there's no certainty as to how the Patent Office is going as to
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`to tell me about?
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`handle it.
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`MR. ANDRE: Your Honor, I would just say this.
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`THE COURT: Are the Motions to Amend still pending?
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`If we get the trial date, then everything else kind of
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`MR. ANDRE: We filed the motions. All the oral
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`stems backwards from that. I think that's the biggest dispute.
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`argument is done. We can't do anything else. There's nothing
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`Once we have the trial date, frankly, the rest of the dates fall
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`else we can affect the decision. The amendment have already
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`in line. I think we can reach agreement at that point.
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`and we can't change those.
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`That's the biggest issue. Some of these other
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`positions we have not reached agreement on. For example, the
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`been made. The proposed amendments have been made to the claims
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`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 3 of 9 PageID #: 18006
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`THE COURT: So is there a timetable for when somebody
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`very first one here about the damages.
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`in the PTO, or I guess in the PTAB, or somewhere is going to
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`rule on these?
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`THE COURT: Okay. So I appreciate what you say.
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`So do you agree if I pick the end date, you can pick
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`MR. ANDRE: March 2nd, I believe. Less than two weeks.
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`the intermediate dates?
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`The PTAB is statutorily required to come up with a
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`decision on the IPRs by, I think, March 2nd or 3rd. You guys
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`correct me if I'm wrong, but I think it's those dates.
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`MR. ENZMINGER: Yes.
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`THE COURT: Okay. All right.
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`Well, we'll get to that.
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`MR. TOMASULO: Mid-March. There are two sets of
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`So let's go through the other things. There's this
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`decisions.
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`paragraph on Page 2 about what defendant's position is. And I
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`THE COURT: And, so, when the PTAB actually rules, what
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`thought that there were three different things in this one
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`would your position be then?
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`paragraph.
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`MR. ENZMINGER: It depends on how the PTAB rules.
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`One is, plaintiff shall not be entitled to seek damages
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`THE COURT: Let's say they -- why does their ruling
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`for infringement prior to the date the Complaints were served in
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`make a difference?
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`2015 cases.
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`MR. ENZMINGER: Suppose they ask for additional
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`I take it that part you don't have a disagreement with?
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`briefing or something?
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`MR. ANDRE: I don't, your Honor. I made a
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`MR. TOMASULO: Or they appeal?
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`representation to the Court and I'm fine with that.
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`has anything happened since you submitted this that you do want
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`Well, so, if you submit the Protective Order without
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`the little thing underlined, I will sign it.
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`MR. ANDRE: Thank you, your Honor.
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`THE COURT: All right.
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`So on the Scheduling Order, where to begin?
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`So I did look through it, and because there is so much
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`disagreement, I didn't think it was actually necessarily
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`particularly a good idea for me just to say, here's the final
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`date. You all work it out. I don't have confidence you can.
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`So let me just start going through the things that I
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`noticed, or made some kind of -- well, actually, before I start,
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`THE COURT: All right.
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`So here's the thing is, I'm perfectly willing to put
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`this in the Protective Order, what you're asking for, but then
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`you are stuck if, in fact, there is something down the road
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`where people want to change.
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`In other words upon the representation that there is
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`absolutely nothing that we can do, or will do in the future that
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`can, you know, risk inadvertent disclosure of the source code,
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`I'm perfectly happy to let you proceed, but you kind of perhaps
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`do it at your reason risk.
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`MR. ANDRE: We're willing to take that risk, your
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`Honor.
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`THE COURT: All right.
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`THE COURT: Right.
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`So then there's a second sentence, which is -- does not
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`necessarily follow from the first sentence -- which is, absent a
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`showing of good cause, follow-up discovery shall be limited to
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`the period after these dates.
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`Now, maybe if you meant follow-up damages discovery,
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`possibly?
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`But as I recall from other things, there's possibly,
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`you know, development work, there may be, you know, things that
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`occur before then -- probably not sales -- but there are things
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`that could occur before then that are relevant to infringement
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`issues, possibly invalidity issues, and possibly damages issues,
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`right?
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`MR. ENZMINGER: Right.
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`THE COURT: So what are you trying to cut off?
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`MR. ENZMINGER: Damages issues.
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`And let me be specific.
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`The very first sentence of this says that they intend
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`to reinstate a Motion to Compel. That Motion to Compel, which
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`they've advised us that they intend to reinstate, expressly
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`seeks damages information 2009 to the present.
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`THE COURT: That seems to me -- by the way, you are Mr.
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`Enzminger, right?
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`MR. ENZMINGER: Enzminger, yes.
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`THE COURT: Sorry. You know, I'm not going to rule on
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`appeals that, you know, among other things I haven't looked
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`I'm going to set a schedule in the question of whether
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`at -- or appeals isn't the right word -- objections to what the
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`new products can be added. That is, again, something for the
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`Special Master has ordered.
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`Special Master to figure out.
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`And, so, it could be just as a hypothetical matter that
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`I would just say that there comes a point, if you have
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`because of the passage of time, and changes in positions, or
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`a trial date, when you have to stop adding new products, so you
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`whatever, that things the Special Master ordered besides
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`can get a fixed target to try a case about. I don't know what
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`whatever objections might still be good, that there are some
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`that date is, because among other things, we don't have a trial
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`things that have become moot.
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`date.
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`And I take it that's what you're saying is, the damages
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`And, again, I think the Special Master could probably
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`cut-off makes the damages information that the Special Master
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`help you reach a resolution on that.
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`ordered for 2009 moot and irrelevant. Maybe that's true --
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`MR. TOMASULO: That's fine, your Honor.
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`MR. ENZMINGER: Didn't order it. They're seeking it
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`MR. ANDRE: And just to be clear, it's the same
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`now.
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`THE COURT: Okay.
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`products with the new -- they update them every year. So it's
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`the same product, just updated each year.
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`Well, you know, it is -- you know, I'm not going to
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`THE COURT: So maybe that's all good things to talk to
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`rule on that right now.
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`the Special Master about is, there's no burden, nothing really
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`Is there anything you want to say about that?
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`to do, change the -- I mean, okay -- so I'm going to cross that
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`MR. ANDRE: Yes, your Honor. I think that we can bring
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`out, too.
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`up the Special Master, not bother you with it, but the position
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`All right.
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`obviously is, just because we only seeks damages from the point
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`where we actually gave notice, the actual sales figures and
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`So then we'll -- the let me skip to the next thing.
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`So I think that means that pretty much all the
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`things that go into growth, and the things that damages experts
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`disagreement on Page 3, above the discovery cutoff part, isn't
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`use before that are relevant.
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`that all stuff for the Special Master to figure out?
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`We can bring that up with the Special Master and let
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`him decide it.
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`MR. ANDRE: That's correct, your Honor.
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`MR. ENZMINGER: That's fine, your Honor.
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`THE COURT: Well, and, so, you know, that's what I'm
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`inclined to do is, I turn this over to the Special Master for
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`multiple reasons, some of them even good reasons.
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`I think that these are the -- these are discovery
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`issues, not really scheduling issues, so my inclination is to
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`just cross out the second sentence of defendant's position and,
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`you know, leave the question of what discovery is relevant given
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`what the damages time period is, and whatever else up for the
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`MR. TOMASULO: They are adding more -- they have added
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`2017 versions of products, and proposed a schedule that ends in
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`no time at all. We don't have infringement contentions for
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`those new products.
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`MR. ENZMINGER: We actually don't have infringement
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`contentions for the old products.
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`THE COURT: Why don't we do this?
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`Special Master to figure out, okay?
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`MR. ENZMINGER: Okay.
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`MR. TOMASULO: That's fine, your Honor.
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`MR. ANDRE: That's fine, your Honor.
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`THE COURT: And then there is the third sentence, which
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`is, additional products may not be added in these cases without
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`leave of the Court.
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`Is that a hypothetical sentence or is that something
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`where you are expecting right now that there is more products
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`being added?
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`THE COURT: Okay.
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`MR. ENZMINGER: So we're X'ing out everything above
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`discovery cutoff, is that correct?
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`THE COURT: I think so, yes.
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`All right.
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`So on Page 4 near the bottom there's talk about --
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`practically begs to be crossed out, you know, e-mail custodians,
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`search terms.
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`Do you agree that I can just cross out that paragraph
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`plus the defendants' paragraph at the top of the next page,
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`okay?
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`person.
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`MR. ENZMINGER: Yes, your Honor.
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`THE COURT: You're surprisingly more reasonable in
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`All right.
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`Let's move on.
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`Oh, so have you all had disputes with the Special
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`Master before about the length of time of depositions or is that
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`--
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`MR. ENZMINGER: No, your Honor.
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`THE COURT: You haven't quite gotten that far yet.
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`MR. ENZMINGER: We have not gotten that far.
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`THE COURT: If you both want me to resolve the
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`deposition issue right now, I'm happy to do that if you -- one
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`or the other of you wants to bring it up with the Special
`02/23/2017 10:34:05 AM
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`Master, I would do that.
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`Do you want me to resolve the issue is now?
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`MR. ANDRE: I think so, your Honor.
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`And here did this come up before?
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`MR. TOMASULO: This is anticipatory. We learned that
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`there's a lot of third-party discovery that will need be to
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`thing that you all, because, you know, maybe some inventor wants
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`MR. ENZMINGER: That's fine. It would be one less
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`taken because the patents are 20 years old, and there were, you
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`issue.
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`MR. TOMASULO: I think so, your Honor.
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`THE COURT: Okay. All right.
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`know, efforts to commercialize them.
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`There's just a lot of probably small depositions that
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`need to be taken. And ten depositions isn't going to do it.
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`So the first thing is, plaintiff says the two days of
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`So it's just a question of -- we thought this would be
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`deposition will be scheduled within a reasonable amount of time
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`uncontroversial. We're not trying to game the system. We don't
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`for each other to alleviate an undue burden on the inventors.
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`want to take -- it's just a question of how -- you know, if we
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`You know, my main objection to that is, I'm not
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`take a third-party deposition of Boeing, or someone that Boeing
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`actually sure that that's enforceable. You know, I take it what
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`offered their licensed patents to, we would like to be able to
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`you're saying is, you don't want inventor -- we're talking about
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`use that transcript in all three cases.
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`inventors here, right?
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`THE COURT: Is there a time limit on how many hours, or
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`MR. ANDRE: Two inventors, yeah.
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`was this always just ten depositions maximum?
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`THE COURT: Yeah, you don't want an inventor to be
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`MR. TOMASULO: It was never -- it was -- what we said
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`deposed for seven hours a few weeks from now and then seven
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`originally was that your original Order was that the -- Federal
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`hours again in early 2018?
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`Rules of Civil Procedure would apply to all three cases, so it
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`MR. ANDRE: Or conversely, seven hours on Tuesday and
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`was never given more specificity than that.
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`seven hours on Wednesday, because it's a bit exhausting for a
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`THE COURT: Okay.
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`layperson to go through two consecutive.
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`MR. FRANKEL: Your Honor, if we can make this provision
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`THE COURT: I'm sure it is, but isn't this the kind of
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`go both ways?
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`to do two days in a row? Isn't this the kind of thing that you
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`about prior art, that it wouldn't count as three depositions,
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`all sort of worked out based on individual circumstances as you
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`because there's three different cases. If we can make it both
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`For example, if Acceleration Bay takes a deposition
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`are participating in the deposition.
`02/23/2017 10:34:05 AM
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`THE COURT: Well, see, the thing is, I would like you
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`all to take a reasonable approach, but I'm not sure -- you know,
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`I would expect that if you said inventor A does not want to be
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`deposed for seven hours on Tuesday and seven hours on Wednesday
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`because it will exhaust him, her, or it, that that would be the
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`kinds of things that the defendants would agree to?
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`MR. TOMASULO: That's correct, your Honor.
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`MR. ANDRE: You can take that sentence out. I mean, I
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`get what you're saying.
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`I think this is something that was a vestige from a
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`previous order, and we just -- they wanted to take it out, and
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`we wanted to leave it in for more guidance than enforceability.
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`THE COURT: All right. All right.
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`So the next thing was the business about counting
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`depositions against multiple defendants, if multiple defendants
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`go down the road?
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`MR. FRANKEL: That's correct, your Honor.
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`And this provision was in the first Scheduling Order in
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`the previous cases. I just don't see the reasons to take it out
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`here and I would also note that the inventors have already been
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`deposed in the IPR proceedings, and we've incorporated those
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`transcripts in this case.
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`So it just seems strange to not take a reasonable
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`approach here to minimize burden.
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`ways, I think we can agree that if we need some additional
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`depositions given the third party issues, then we'd be fine.
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`MR. TOMASULO: Of course we didn't intend it to be
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`unilateral.
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`THE COURT: Okay. So you all understand what you just
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`said to each other?
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`I think I barely do.
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`But, basically, you've just resolved this one.
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`MR. TOMASULO: I think that's correct. I think what --
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`we would just leave in defendants' position with the
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`understanding that it's bilateral.
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`THE COURT: Okay. I can understand that, if you want
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`to add in --
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`MR. TOMASULO: We can modify it.
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`THE COURT: Why don't you add a word or two to make it
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`clear that that's the case?
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`MR. TOMASULO: Okay.
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`THE COURT: Okay. So, thank you for that suggestion,
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`Mr. Frankel.
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`All right.
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`Then there was one more thing here, which I have to say
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`seemed kind of reasonable to me, in terms of providing dates.
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`MR. TOMASULO: That's fine with us, your Honor.
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`MR. ENZMINGER: Yes, the issue there is that that is
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`connected to an another similar provision that they rejected on
`4 of 13 sheets
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`Page 8.
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`THE COURT: Okay. All right.
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`THE COURT: Is that the Markman thing?
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`And, so, I guess that actually makes sense to me,
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`MR. ENZMINGER: Yes, the experts. Providing the dates
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`because presumably whatever it is Activision makes is a
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`availability for expert witnesses.
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`completely different infringement question than whatever it is
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`THE COURT: Okay. You know, I wrote there, "good
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`Electronic Arts makes.
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`idea," too.
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`Wait a second.
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`All right.
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`So, in any event, I guess what plaintiff had, they have
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`Yeah, so there any reason why that shouldn't be
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`their paragraph there. It seemed like defendants generally
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`bilateral also?
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`wanted to, at least in terms of the man hours for doing this,
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`MR. ANDRE: That's bilateral. That's fine, your Honor.
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`let that be decided later, and if necessary resolved by the
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`19
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`THE COURT: Okay.
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`Good work there.
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`All right.
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`Special Master.
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`MR. ENZMINGER: Essentially, yes. Our concern is the
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`volume of non-essential material in the expert reports.
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`So moving along at the bottom -- so I just resolved the
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`THE COURT: Well, that has to do with the seven hours
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`Protective Order matter, so you can cross that out of the
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`per hundred pages of report?
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`Scheduling Order.
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`Okay. Claim construction.
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`MR. ENZMINGER: Yes.
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`THE COURT: So, you know, I guess what I'm thinking is
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`I have a note in the -- oh, okay, that's just a date
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`this is, you know, I think maybe it make sense to put this off,
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`thing.
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`because you really don't know what you're going to get from
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`Then the dispute on Page 8 that's labeled "Defendants'
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`either side, and maybe you'll be able come to some agreement.
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`Position," we just resolved that with the bilateral thing.
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`I think the word "bilateral" is a useful word to keep
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`So we have a hearing on claim -- so I just made the
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`in mind for these things.
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`note for Paragraph 8. I don't think June 22nd, 2017, is a good
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`But, in any event, you can come to some agreement, and
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`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 6 of 9 PageID #: 18009
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`idea, because I think I'm going to be in trial on something else
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`then, but that's -- but, in any event, let's not talk about
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`if it doesn't work out, you can't work it out between
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`yourselves, you can work it out with the Special Master, is that
`20
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`18
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`dates anymore.
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`Okay. We have expert depositions and the length.
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`I have to tell you that looking at that, my initial
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`reaction was that seemed like an awful lot of deposition hours.
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`I guess this is plaintiffs's position.
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`If the expert filed an opening report on infringement,
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`and a reply report on infringement, that would mean the expert
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`gets to be deposed for 14 hours?
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`MR. FRANKEL: Your Honor, that would be infringement in
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`one case, would be seven hours of deposition. Since we're doing
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`reply reports, that wasn't meant that there would be 14 hours
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`just on infringement.
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`So, if an expert does infringement and validity, then
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`that would be 14 hours.
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`THE COURT: Oh, okay.
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`So reply reports don't count?
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`MR. FRANKEL: Correct.
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`THE COURT: Well, except that -- you know, I guess
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`actually -- I just realized -- your math is not so hot, because
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`it says a total of 21 hours of deposition and then helpfully it
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`says -- well, actually, it does, it says seven hours for each of
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`the reports on infringement.
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`I take it two expert reports on infringement, that
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`meant one for Activision and one for Electronic Arts?
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`MR. FRANKEL: Correct, your Honor.
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`all right?
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`MR. ANDRE: Yes, your Honor.
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`MR. TOMASULO: Yes, your Honor. We'll take out the
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`entirety of -- from the plaintiff's position down to objections
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`of the expert testimony?
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`THE COURT: Yes.
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`All right.
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`I think that's -- oh, yeah.
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`So Paragraph 16, I see the words "eight day jury trial"
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`in there. I'm kind of imagining the last time I did this I
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`probably said five day jury trial.
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`MR. TOMASULO: Well, actually, I did say eight day, but
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`we were going to raise that with you with the understanding that
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`that's not the normal length for a trial, but the last Order did
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`say eight days, but, you know --
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`THE COURT: I must have not been paying attention.
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`All right.
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`Well, is there any reason why we can't be aiming for a
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`five-day jury trial here?
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`MR. ANDRE: That's fine with us, your Honor.
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`I've not tried a case in front of your Honor,
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`unfortunately. As long as it doesn't include like the jury
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`selection process and all that, I mean, five actual days of --
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`THE COURT: Generally, Monday to Friday would be ideal,
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`because jury selection and the start of the case usually takes
`02/23/2017 10:34:05 AM
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`two hours or less.
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`other?
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`So, basically, you can try the case all week. And if
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`MR. ANDRE: Your Honor, the date from your point of
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`we need to have closing arguments on the Monday, we can have
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`view to some degree, because we filed the original case in March
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`closing arguments on the Monday.
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`of 2015, we wanted to get it in the before the three-year
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`MR. TOMASULO: May I make one observation about the
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`anniversary.
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`first trial, which is Activision?
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`THE COURT: I don't care whether it shows up on the
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`The three sets of accused products are really three
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`list.
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`disparate business units, including a third party.
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`MR. ANDRE: Okay, okay. But from our perspective, we
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`So it may be that we do -- depending on the scope of
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`think it's sufficient time. I wouldn't mind splitting the baby
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`the case at that time -- do need to request more trial time
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`here and finding someplace in between, but it really depends on
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`because there could be as many as six patents and three
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`your Honor's calendar and what looks like --
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`non-overlapping sets of infringement contentions.
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`THE COURT: All right.
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`THE COURT: Well, so, here's -- this is what I'd like
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`So we have an offer of split the baby.
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`to do is, I would like to write in five days. That's without
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`MR. ENZMINGER: Yeah, we would actually resist that,
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`prejudice to the kinds of issues you're talking about.
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`your Honor, for a couple of reasons.
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`And I know -- I mean, I have -- there's not going to be
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`First, our schedule largely tracks what the original
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`six patents when we try this case. You're going to have to get
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`schedule would have been had there be no -- had that case
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`rid of some of them. We'll figure out how many later on.
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`proceeded.
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`We're not going to do six at once. That's, in my
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`THE COURT: When you say "largely tracks," had I
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`opinion, ridiculous, but that may actually have not much to do
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`scheduled the trial for June of 2 --
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`with the time in the case anyhow.
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`MR. ENZMINGER: No. I mean, the dates that we had
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`MR. ANDRE: It's our burden of prove and we understand
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`agreed to based on the time of events from --
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`that. We try a lot of cases. And if we're on the clock, we've
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`THE COURT: In other words, from -- I think I
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`got to get our case in.
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`So --
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`understand what you're saying.
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`MR. ENZMINGER: So, for example, on the plaintiff's
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`THE COURT: All right.
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`MR. ANDRE: -- the pure logistics of trying a case in
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`five days will force us to be very streamlined.
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`THE COURT: All right.
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`Well, any event, with the sort of understanding that
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`I've said here, let's cross this out and make it five, but it is
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`something that -- and this may not be the proper use of the
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`phrase "at the margins" it's something we can play with.
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`But it's not going to be, you know, let's have a nine
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`day trial. That's not going to happen.
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`All right.
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`Any suggestions as to why I should pick one side or the
`02/23/2017 10:34:05 AM
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`So that leaves the question, I think, of when these
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`trials should actually be scheduled, because I think everything
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`else then is stuff that you said you can work out between
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`yourselves.
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`So, first off, I note that you've got these things
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`scheduled in two months in between each other. And even though
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`defendants -- that's the plaintiff's schedule -- the defendants'
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`schedule is slightly different.
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`But, again, there is sufficient time in between to have
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`some chance to appreciate what happened in the one that went
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`before.
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`And, so, there's basically a four-month difference -- a
`four to three-month difference in the schedule here.
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`schedule, there would be -- well, we can look at it -- but
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`there's a very short time between expert discovery and there's
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`only two weeks, I think, for Dispositive Motions. And then the
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`Court only has a month over December to decide all the
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`Dispositive Motions.
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`THE COURT: All right.
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`Hold on a minute. Let me --
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`MR. ENZMINGER: Our --
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`THE COURT: Hold on, Mr. Enzminger.
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`MR. ENZMINGER: Yes.
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`(Pause)
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`THE COURT: All right.
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`Well, I think there is a -- of course, actually, Mr.
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`Andre's split the baby I think takes care of the part that you
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`just said that caught my attention, which is not allowing me
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`enough time to decide the Dispositive Motions.
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`You've also said that the Dispositive Motions are due
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`ten days after the -- so I think you could give yourself another
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`20 days for the Dispositive Motions and move -- and still split
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`the baby and give me enough time for the Dispositive Motions.
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`MR. ENZMINGER: That's only one crammed date.
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`The other one is the date for the final assertion of
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`claims after the Markman Hearing and the opening of expert
`reports.
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`You know, the reality is, these patents are 15 years
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`old. The plaintiff doesn't make products.
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`MR. TOMASULO: We think if we have a Markman Hearing on
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`So, you know, the difference in two months or three
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`July 10th, I think we can probably move our dates back at least
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`months doesn't make a bit of difference to the plaintiff. And
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`two or three weeks, because we weren't sure when in July we
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`we just think that if we have a date -- we've already provided a
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`would be able to get a hearing.
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`very aggressive schedule -- and we think that providing an even
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`So we can put probably -- our trail dates right now are
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`for no real reason.
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`in June. The trial date is --
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`THE COURT: So here's the thing.
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`27
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`more aggressive schedule will unnecessarily compress the parties
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`MR. ANDRE: Your Honor, I think this is something that
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`It seems to me reasonable, as Mr. Andre said, to split
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`doesn't effect the Court, the opening of expert reports. This
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`the baby. Why don't you pick trial dates that are roughly in
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`is a compression of their own making.
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`the middle of the -- where you -- where you both are right now.
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`We're willing to go forward with it. We have the
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`You've got a Markman date.
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`initial reports of non-infringement, which presses us more than
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`I presume -- and you've got a -- how do I phrase
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`them, because their invalidity challenge they've already taken
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`this -- and I do expect that there will be a Markman by the end
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`their best shot at the IPRs, so I don