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Case 1:19-cv-11278-RGS Document 30 Filed 01/10/20 Page 1 of 4
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`DEFENDANTS’ MOTION FOR LEAVE TO FILE BRIEFING ON INDEFINITENESS
`AND FOR THE COURT TO CONSIDER INDEFINITENESS
`IN CONNECTION WITH CLAIM CONSTRUCTION
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`Pursuant to Local Rules 7.1(b)(3) and 16.6, Defendants Paychex Inc. (“Paychex”) and
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`Civil Action No. 1:19-CV-11272-RGS
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`Civil Action No. 1:19-CV-11278-RGS
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`UNILOC 2017 LLC,
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`Plaintiff,
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`vs.
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`PAYCHEX, INC.,
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`Defendant.
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`UNILOC 2017 LLC,
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`Plaintiff,
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`vs.
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`ATHENAHEALTH, INC.,
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`Defendant.
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`athenahealth, Inc. (“athenahealth”) (collectively “Defendants” in the above-captioned cases)1
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`hereby move the Court for leave to file briefing regarding issues of claim indefiniteness, including,
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`but not limited to, regarding means plus functions terms and Defendants’ contentions that the
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`means plus function terms in all means plus function terms in the asserted claims of both Plaintiff’s
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`asserted patents lack corresponding structure in the patent specifications. Issues of indefiniteness
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`are properly taken up in conjunction with the claim construction process and would be most
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`1 The above captioned cases have not been formally consolidated; however the Court has consolidated the cases for
`one single joint claim construction proceeding. 19-11272 Dkt 16; 19-11278 Dkt 19.
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`
`

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`Case 1:19-cv-11278-RGS Document 30 Filed 01/10/20 Page 2 of 4
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`efficiently and appropriately be heard at the Markman hearings to be schedule in the above-
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`captioned cases. See Typemock, Ltd. v. Telerik, Inc., 2018 WL 4189692 (D. Mass. Aug. 31 2018)
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`(consideration of indefiniteness as part of Markman claim construction). The parties are separately
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`briefing issues of claim construction in accordance with the Court’s Scheduling Order in this case
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`(19-11272 Dkt 16-17; 19-11278 Dkt 19; 19-11272 Dkt 17) as follows:
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`1.
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`2.
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`3.
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`Opening claim construction briefs to be filed no later than 1/23/2020;
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`Reply briefs to be filed no later than 2/20/2020;
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`The parties to submit a joint claim construction statement to the court (including a
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`ranking of the terms in the parties' estimation of importance to the case in decreasing order)
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`no later than 3/5/2019.
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`Defendants disclosed the indefiniteness issues in their respective disclosures under Local Rule
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`16.6(d)(4) (October 31, 2019 for Paychex and December 4, 2019 for athenahealth).
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`In sum, Defendants propose the following briefing to coincide with the already set briefing
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`schedule on claim construction:
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`1. On January 23, 2020, Defendants shall file their opening briefs on indefiniteness (20
`page limit); 2
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`2. On February 6, 2020, Plaintiff shall file its opposition brief on indefiniteness (20 page
`limit);
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`3. On February 20, 2020, Defendants shall file their reply briefs on indefiniteness (10
`page limit).
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`2 In accord with the claim construction briefing, Defendants submit that “[t]o avoid redundant briefing, defendants
`may elect to divide the terms amongst themselves (or agree upon some other efficient allocation), and Uniloc may
`submit a single brief.”
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`- 2 -
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`Case 1:19-cv-11278-RGS Document 30 Filed 01/10/20 Page 3 of 4
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`WHEREFORE, Defendants respectfully request that the Court grant this motion and enter
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`an order with the proposed schedule set forth herein.
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`Dated: January 10, 2020
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`Respectfully submitted,
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`
`/s/ James Sebel
`James Sebel (BBO #693531)
`sebel@fr.com
`Steven R. Katz (BBO #642732)
`katz@fr.com
`Matthew C. Berntsen (BBO #678533)
`berntsen@fr.com
`Christopher R. Dillon (BBO #640896)
`dillon@fr.com
`Andrew G. Pearson (BBO #688709)
`pearson@fr.com
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210
`Telephone: (617) 542-5070
`Facsimile: (617) 542-8906
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`Attorneys for Defendant
`athenahealth, Inc.
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`/s/Andrea L. Martin
`Andrea L. Martin (BBO #666117)
`Burns & Levinson LLP
`125 High Street
`Boston, MA 02110
`Telephone:
` (617) 345-3869
`Facsimile:
` (617) 345-3299
`Email: amartin@burnslev.com
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`Peter J. Chassman (pro hac vice)
`Email: pchassman@reedsmith.com
`Michael J. Forbes (pro hac vice)
`Email: mforbes@reedsmith.com
`REED SMITH LLP
`811 Main Street, Suite 1700
`Houston, TX 77002-6110
`PJC Telephone:
`(713) 469-3885
`MJF Telephone:
`(713) 469-3864
`Facsimile:
` (713) 469-3899
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`Attorneys for Defendant
`PAYCHEX, INC.
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`RULE 7.1 CERTIFICATION
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`Counsel for the parties met and conferred regarding claim construction and specifically
`indefiniteness on December 19, 2019; counsel further met and conferred regarding this specific
`Motion and briefing schedule; Plaintiff’s counsel stated that it will oppose this Motion.
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`
`/s/ James Sebel
`James Sebel
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`- 3 -
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`Case 1:19-cv-11278-RGS Document 30 Filed 01/10/20 Page 4 of 4
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that this document filed through the ECF system will be sent electronically
`to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper
`copies will be sent to those indicated as non-registered participants on January 10, 2020.
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`/s/ James Sebel
`James Sebel
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`- 4 -
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