`
`UNITED STATES DISTRICT COURT
`DISTRICT OF DELAWARE
`
`
`Plaintiff,
`
`Civil Action No. 22-304-RGA
`
`JURY TRIAL DEMANDED
`
`
`
`v.
`
`ROBOCAST, INC.,
`a Delaware corporation,
`
`
`
`
`
`YOUTUBE, LLC., a Delaware limited
` liability company; and GOOGLE LLC, a
`Delaware limited liability company,
`
`
`
`
`
`Defendants.
`
`
`
`
`PLAINTIFF ROBOCAST, INC.’S NOTICE OF SUPPLEMENTAL AUTHORITY IN
`SUPPORT OF ITS IN OPPOSITION TO DEFENDANTS’ RENEWED MOTION TO
`DISMISS FOR OBVIOUSNESS-TYPE DOUBLE PATENTING
`
`Plaintiff Robocast hereby respectfully submits this Notice of Supplemental Authority to
`
`bring to the Court’s attention relevant developments and authority post-dating completion of the
`
`briefing in connection with Defendants’ Renewed Motion To Dismiss For Obviousness-Type
`
`Double Patenting (“ODP”) (D.I. 109).
`
`First, on November 13, 2023, Cellect LLC filed a petition for rehearing en banc in response
`
`to the three-judge panel decision in In re Cellect, 81 F.4th 1216 (Fed. Cir. 2023). Exhibit 1. The
`
`petition was supported by 10 amicus briefs filed on behalf of 20 parties, including industry groups,
`
`bar associations, private corporations, and the Association of University Technology Managers.
`
`Robocast joined in one such amicus brief. Exhibit 2. The Federal Circuit requested a response to
`
`the petition from the PTO as appellee. The PTO filed its opposition to Cellect’s petition on
`
`December 14, 2023. Only a single amicus filed a brief supporting the PTO’s opposition. The
`
`Federal Circuit’s decision on the petition is pending.
`
`1
`
`
`
`
`Case 1:22-cv-00304-RGA-JLH Document 127 Filed 01/05/24 Page 2 of 3 PageID #: 7022
`
`
`
`Second, on December 29, 2003, Magistrate Judge Burke issued a report and
`
`recommendation denying a motion for judgment on the pleadings of invalidity based on ODP in
`
`a case involving similar circumstances to the case at hand, i.e., a motion filed prior to a claim
`
`construction ruling and in the absence of a developed record as to whether the differences in
`
`claim language rendered claims patentably distinct. Bausch & Lomb Inc. v. SBH Holdings LLC,
`
`No. 20-1463-GBW-CJB, D.I. 102 at 6-8 (Dec. 29, 2023) (holding that resolving an ODP
`
`affirmative defense on a Rule 12(c) “minimalist record” would be “improper” and “premature”).
`
`A copy of this decision is attached hereto as Exhibit 3.
`
`
`
`Dated: January 5, 2024
`
`
`Of Counsel
`
`CANTOR COLBURN LLP
`
`Marc N. Henschke (pro hac vice)
`Steven M. Coyle (pro hac vice)
`Andrew C. Ryan (pro hac vice)
`Nicholas A. Geiger (pro hac vice)
`20 Church Street
`22nd Floor
`Hartford, CT 06103
`Tel. (860) 286-2929
`Fax. (860) 286-0115
`mhenschke@cantorcolburn.com
`scoyle@cantorcolburn.com
`aryan@cantorcolburn.com
`ngeiger@cantorcolburn.com
`
`
`
`
`MCKOOL SMITH, P.C.
`
`Steven Rizzi (pro hac vice)
`Ramy E. Hanna (DE Bar Id #: 5494)
`
`
`
`
`BAYARD, P.A.
`
` /s/ Stephen B. Brauerman
`Stephen B. Brauerman
`Ronald P. Golden, III
`600 N. King Street
`Suite 400
`Wilmington, DE 19801
`(302) 655-5000
`Fax: (302) 658-6395
`sbrauerman@bayardlaw.com
`rgolden@bayardlaw.com
`
`
`
`Attorneys for Plaintiff
`Robocast, Inc.
`
`
`
`
`2
`
`
`
`
`Case 1:22-cv-00304-RGA-JLH Document 127 Filed 01/05/24 Page 3 of 3 PageID #: 7023
`
`Casey L. Shoemaker (pro hac vice)
`One Manhattan West
`395 9th Avenue, 50th Floor
`New York, New York 10001-8603
`(212) 402-9400
`srizzi@McKoolSmith.com
`rhanna@McKoolSmith.com
`cshomaker@mckoolsmith.com
`
`
`
`
`
`
`
`3
`
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
