Case 1:13-cv-11567-DJC Document 115 Filed 06/20/14 Page 1 of 7
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`ZOND, LLC,
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`v.
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`THE GILLETTE COMPANY and
`THE PROCTER & GAMBLE COMPANY,
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`Plaintiff,
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`Civil Action No. 1:13-CV-11567
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`))))))))))
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`MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION
`OF ORDER ON MOTION FOR CLARIFICATION OF THE
`COURT’S DECEMBER 17, 2013 SCHEDULING ORDER
`BY THE GILLETTE COMPANY AND THE PROCTER & GAMBLE COMPANY
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`Case 1:13-cv-11567-DJC Document 115 Filed 06/20/14 Page 2 of 7
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`INTRODUCTION
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`I.
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`On June 11, 2014, the Court denied as moot the Motion for Clarification (Dkt. 40) of the
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`Court’s December 17, 2013 scheduling order by defendants The Gillette Company and The
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`Procter & Gamble Company (collectively, “Gillette”). The Court’s Order (Dkt. 109) states that
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`Gillette’s motion was “DENIED as moot in light of order granting joint motion for modification
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`of the scheduling order, D. 96.” Id.
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`Gillette respectfully seeks reconsideration of the Court’s denial of Gillette’s motion for
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`two reasons:
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`First, the joint motion for modification of the scheduling order (Dkt. 96) merely changes
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`the dates for briefing on claim construction. By contrast, Gillette’s motion for clarification was
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`directed to clarifying the number of claims plaintiff Zond, LLC (f/k/a Zond, Inc.) (“Zond”) is
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`permitted to assert. The parties’ joint motion for modification of the scheduling order did not
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`address claim narrowing—it simply shifted the claim construction deadlines. Moreover, Zond
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`has refused to reduce the number of its asserted claims. It continues to assert 125 claims across
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`10 patents against Gillette. The parties will be forced to brief disputed terms from all of these
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`claims unless Zond complies with the Court’s Scheduling Order and narrows its claims.
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`Second, Zond previously represented in response to Gillette’s motion for clarification that
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`it would “substantial[ly]” narrow its claims “before” claim construction briefing. Dkt. 46 at 9.
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`Despite this representation, Zond continues to assert the same 125 claims across all 10 patents,
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`and refuses to perform any narrowing, let alone any “substantial” narrowing, with claim
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`construction deadlines rapidly approaching.
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`Accordingly, resolving the parties’ dispute on claim narrowing is necessary to avoid
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`wasting the Court’s valuable time and resources construing claim terms that will never be
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`Case 1:13-cv-11567-DJC Document 115 Filed 06/20/14 Page 3 of 7
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`presented to the jury. See Dkt. 41 [Memorandum in Support of Motion for Clarification (Dkt.
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`40)] at 4-5.
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`II.
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`BACKGROUND
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`On February 10, 2014, Gillette requested clarification of the Court’s Scheduling Order.
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`Dkts. 40, 41. Specifically, Gillette sought to clarify that Zond was required to elect no more than
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`32 total claims in its preliminary infringement disclosures, with no more than 10 claims per
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`patent, prior to the deadline for submitting preliminary invalidity disclosures on March 18, 2014.
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`Zond opposed Gillette’s motion, but represented that it “proposed to Gillette a narrowing
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`scheme that included substantial preliminary narrowing after Zond receives Gillette’s complete
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`technical information and the invalidity contentions, but before the Markman briefing.” Dkt. 46
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`[Zond’s Opposition to Motion for Clarification] at 9 (emphasis in original).
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`In the subsequent months, Gillette produced to Zond relevant technical documents. Zond
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`also took the deposition of a Gillette engineer. After receiving this discovery, Zond dismissed its
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`claims against Gillette’s commercial razor blades, leaving at issue only a limited number of
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`prototype razor blades that were never commercially sold. See Dkt. 88-1 [Gillette’s Reply on
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`Motion to Stay] at 1, 6.
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`Despite these developments, Zond continues to assert the same 125 claims across 10
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`patents set forth in its January 13, 2014 infringement contentions. Zond continues to do so
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`despite previously representing to the Court that it would “substantial[ly]” narrow its claims
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`prior to Markman briefing. Dkt. 46 [Zond’s Opposition to Motion for Clarification] at 8-9.
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`Zond has made no attempt to narrow its claims and, in fact, has affirmatively refused to do so as
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`recently as May 23. See Declaration of Cosmin Maier, Ex. A [Email from Vardanian to Maier,
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`May 23, 2014].
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`Case 1:13-cv-11567-DJC Document 115 Filed 06/20/14 Page 4 of 7
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`Pursuant to the Court’s amended scheduling order, the parties are scheduled to exchange
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`proposed claim constructions on July 28, with opening claim construction briefs due August 18.
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`Dkt. 96. Yet Zond refuses any claim narrowing—let alone a “substantial” narrowing—of
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`asserted claims. As such, unless the Court orders the claim narrowing originally contemplated
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`by the Court’s December 17, 2013 Scheduling Order, the parties will be forced to brief—and the
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`Court forced to consider—disputed claim terms from 125 claims in 10 patents.
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`III. ARGUMENT
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`“[A] Court has ‘substantial discretion and broad authority’ to grant a motion for
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`reconsideration pursuant to Fed. R. Civ. P. 59(e).” Abbott GmbH & Co. v. Centocor Ortho
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`Biotech, Inc., 885 F. Supp. 2d 491, 493 (D. Mass. 2012) (quoting Ruiz Rivera v. Pfizer Pharms.,
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`LLC, 521 F.3d 76, 81-82 (1st Cir. 2008)). “A motion for reconsideration will be granted upon a
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`showing of (1) a ‘manifest error of law,’ (2) new evidence, or (3) a misunderstanding or other
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`error ‘not of reasoning but apprehension.’” Id.
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`Here, there was an inadvertent but clear error of law and misunderstanding: the parties’
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`joint motion to modify the schedule (Dkt. 94) did not resolve the parties’ dispute regarding
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`whether the Court’s Scheduling Order requires Zond to limit the number of claims it asserts
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`against Gillette for Markman purposes. The joint motion to modify the schedule only sought to
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`move the deadlines for claim construction briefing—it did not address the parties’ dispute on
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`claim narrowing. Zond’s failure to amend its infringement contentions, and to narrow the
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`asserted claims demonstrates that Court intervention is still necessary.1 Accordingly, Gillette
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`1
`In Zond, LLC v. Intel Corp., 13-cv-11570-RGS, Judge Stearns granted Defendant’s
`motion to stay and granted in part Defendant’s Motion to Limit the Number of Asserted Claims,
`requiring Zond, 45 days after the stay is lifted, to provide amended infringement contentions of
`no more than 60 claims, and a further reduction to 16 claims after issuance of the Court’s claim
`construction opinion. Id., Dkt. 121.
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`Case 1:13-cv-11567-DJC Document 115 Filed 06/20/14 Page 5 of 7
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`respectfully requests reconsideration of the Court’s denial of Gillette’s motion for clarification
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`because it is not moot in light of the order granting the parties’ joint motion to modify the
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`schedule. See Bio-Mimetics, Inc. v. Columbia Labs., Inc., 2010 U.S. Dist. LEXIS 63811, at *9
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`(D. Mass. May 26, 2010) (allowing motion for reconsideration of order on motion for
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`clarification).
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`Finally, reconsideration is appropriate because Zond continues to refuse to narrow the
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`asserted claims, despite previously representing that it was “open to [a] substantial preliminary
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`narrowing.” Dkt. 46 [Zond’s Opposition to Motion for Clarification] at 9. Zond’s recent refusal
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`further demonstrates that the issues raised by Gillette’s motion for clarification are not moot.
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`IV. CONCLUSION
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`The Court should grant Gillette’s motion for reconsideration, and grant Gillette’s
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`underlying motion for clarification (Dkt. 40), ordering Zond to reduce the number of asserted
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`claims to no more than 32 total claims, with no more than 10 claims per patent, at least 15 days
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`before claim construction briefing commences.
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`Dated: June 20, 2014
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`Respectfully submitted,
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`/s/ Christopher R. Noyes
`Mark G. Matuschak, BBO # 543873
`Larissa Bifano Park, BBO # 663105
`Wilmer Cutler Pickering Hale and Dorr LLP
`60 State Street
`Boston, MA 02109
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`Christopher R. Noyes, BBO # 654324
`Wilmer Cutler Pickering Hale and Dorr LLP
`7 World Trade Center
`250 Greenwich Street
`New York, NY 10007
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`Case 1:13-cv-11567-DJC Document 115 Filed 06/20/14 Page 6 of 7
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`Attorneys for Defendants The Gillette
`Company and The Procter & Gamble
`Company
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`Case 1:13-cv-11567-DJC Document 115 Filed 06/20/14 Page 7 of 7
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`CERTIFICATE OF SERVICE
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`I, Christopher R. Noyes, hereby certify that on June 20, 2014, a true and correct copy of
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`the foregoing Memorandum in Support of Motion for Reconsideration of Order on Motion for
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`Clarification of the Court’s December 17, 2013 Scheduling Order by The Gillette Company and
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`The Procter & Gamble Company was served by ECF upon all counsel of record for the plaintiff.
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`/s/
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`Christopher R. Noyes
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