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Case 2:22-md-03034-TGB ECF No. 102, PageID.8169 Filed 12/09/22 Page 1 of 4
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIGATION
`
`2:22-MD-03034-TGB
`
`HON. TERRENCE G. BERG
`
`
`
`OPINION AND ORDER ON
`FURTHER PRIOR ART AND
`CLAIM NARROWING
`
`
`THIS MEMORANDUM OPINION
`AND ORDER RELATES TO ALL
`CASES
`
`The individual cases involved in this MDL matter are for patent
`
`infringement brought by Plaintiff Neo Wireless, LLC (“Neo” or
`
`“Plaintiff”) against Defendants Ford Motor Company, American Honda
`
`Motor Co., Inc., Honda Development & Manufacturing of America, LLC,
`
`Volkswagen Group of America, Inc., Volkswagen Group Of America
`
`Chattanooga Operations, LLC, Nissan North America, Inc., Nissan
`
`Motor Acceptance Corporation a/k/a Nissan Motor Acceptance Company,
`
`LLC, Toyota Motor Corporation, Toyota Motor North America, Inc.,
`
`Toyota Motor Sales, U.S.A., Inc., Toyota Motor Engineering &
`
`Manufacturing North America, Inc., Toyota Motor Credit Corporation,
`
`General Motors Company, General Motors, LLC, Tesla, Inc., Mercedes-
`
`Benz USA, LLC, and FCA US, LLC (collectively “Defendants”). In all
`
`
`
`
`
`
`Page 1 of 4
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`

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`Case 2:22-md-03034-TGB ECF No. 102, PageID.8170 Filed 12/09/22 Page 2 of 4
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`nine cases, Neo alleges Defendants infringe six asserted patents related
`
`to LTE functionality. “LTE”, which stands for “Long Term Evolution”
`
`refers to a technical standard for wireless data transmission.
`
`The Court previously ordered the parties to meet and confer, and
`
`propose a schedule by November 30, 2022 for further reducing the
`
`asserted claims and asserted prior art. ECF No. 99 at PageID.8160. On
`
`November 30, 2022, the Court received an email from the parties. See
`
`Court Exhibit A. The email explained that the parties had been unable
`
`to agree on a proposal, and included arguments about the parties’
`
`positions.
`
`As an
`
`initial matter, the Court emphasizes that email
`
`communication is not the proper means for resolving such disputes.
`
`Moreover, it appears that there may be some gamesmanship in the
`
`parties’ compliance with Local Rule 7.1(a). As explained in the Court’s
`
`practice guidelines, the Court requires strict compliance with L.R. 7.1(a),
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`and may impose costs for failure to follow that rule. The Court also
`
`expects that, when ordered to meet and confer, the parties will make all
`
`reasonable efforts reach agreement, and will only seek the Court’s
`
`guidance if a genuine impasse arises.
`
`To ensure compliance of the parties and of the attorneys litigating
`
`this matter with Local Rule 7.1(a), the Court ORDERS Plaintiff and
`
`each Defendant to select one senior partner to lead and actively
`
`participate in all future conferences. Each Lead Attorney will be required
`
`
`
`
`
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`Page 2 of 4
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`Case 2:22-md-03034-TGB ECF No. 102, PageID.8171 Filed 12/09/22 Page 3 of 4
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`to certify to the Court that he or she was actively involved in the
`
`conference and that the conference met all the requirements of Local
`
`Rule 7.1(a). To that end, the parties shall file with the Court a Joint
`
`Notice indicating the Lead Attorney for each party by December 14, 2022.
`
`Regarding the November 30, 2022 email, the Court has considered
`
`the parties’ statements and positions. It appears to the Court that
`
`Defendants have not attempted to narrow the prior art to a level
`
`reciprocal to the reduction in asserted claims that Defendants requested
`
`and that the Court previously ordered. The November 30, 2022 email
`
`indicates that Defendants have currently charted 63 prior art references.
`
`Yet Defendants propose in the email to be allowed to chart 108 prior art
`
`references (Defendants other than Toyota & Nissan), or 36 charts
`
`(Defendants Toyota & Nissan). It is unclear to the Court how this
`
`amounts to any reduction in the prior art, and actually appears to be a
`
`request to expand on the prior art references.
`
`Accordingly, for the same legal reasons stated in its Order Granting
`
`In Part and Denying In Part Defendants’ Motion to Reduce Number of
`
`Asserted Claims (ECF No. 99), the Court ORDERS Defendants to limit
`
`their total asserted prior art references and/or products to an average of
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`eight (8) per patent, for a total of not more than forty-eight (48) references
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`and/or products, on or before December 16, 2022. Defendants can
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`determine how the limit is distributed across the asserted claims.
`
`The Court further ORDERS Plaintiff to reduce the number of
`
`
`
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`
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`Page 3 of 4
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`

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`Case 2:22-md-03034-TGB ECF No. 102, PageID.8172 Filed 12/09/22 Page 4 of 4
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`asserted claims to eighteen (18) two weeks after entry of the Markman
`
`Order.
`
`The Court further ORDERS Defendants to reduce their total
`
`asserted prior art references and/or products to an average of four (4) per
`
`patent, for a total of not more than twenty-four (24), two weeks after
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`Plaintiff reduces the number of asserted claims to 18.
`
`To ensure there will be no undue prejudice to a party, the Court
`
`will remain flexible if a party shows good cause for additional claims or
`
`prior art references. See, e.g., Thought, Inc. v. Oracle Corp., No. 12-05601,
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`2013 WL 5587559 at *2 (N.D. Cal. Oct. 10, 2013) (“Even after requiring
`
`parties to limit the number of claims at issue for claim construction or
`
`trial, courts should allow patent holders to bring back in non-selected
`
`claims upon a showing of ‘good cause’ that the non-selected claims
`
`present unique issues of infringement or invalidity.”).
`
`Finally, the due date for the Exchange Proposed Interpretations of
`
`Disputed Claim Terms in the Scheduling Order (ECF No. 84 at
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`PageID.2581) is changed from December 15, 2022 to December 30, 2022.
`
`IT IS SO ORDERED.
`
`Dated: December 9, 2022
`
`s/Terrence G. Berg
`TERRENCE G. BERG
`UNITED STATES DISTRICT JUDGE
`
`
`
`
`
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`Page 4 of 4
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