Case 2:22-cv-00828-CDS-BNW Document 60 Filed 11/14/22 Page 1 of 6
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`Joseph R. Ganley (5643)
`Brenoch R. Wirthlin (10282)
`HUTCHISON & STEFFEN, PLLC
`Peccole Professional Park
`10080 West Alta Drive, Suite 200
`Las Vegas, Nevada 89145
`Telephone: (702) 385-2500
`Facsimile: (702) 385-2086
`jganley@hutchlegal.com
`bwirthlin@hutchlegal.com
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`Edward R. Nelson III
`Christopher G. Granaghan
`John P. Murphy
`Carder W. Brooks
`NELSON BUMGARDNER CONROY PC
`3131 West 7th Street, Suite 300
`Fort Worth, TX 76107
`Telephone: (817) 377-9111
`ed@nelbum.com
`chris@nelbum.com
`murphy@nelbum.com
`carder@nelbum.com
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`Attorneys for Defendant R2 Solutions LLC
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
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`Case No. 2:22-cv-00828-CDS-BNW
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`DEFENDANT R2 SOLUTIONS LLC’S
`MOTION TO MODIFY LOCAL PATENT
`RULES TO CANCEL CLAIM
`CONSTRUCTION PROCEEDINGS AND
`TO AMEND SCHEDULING ORDER
`ACCORDINGLY
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`ALLEGIANT TRAVEL COMPANY,
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`Plaintiff,
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`v.
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`R2 SOLUTIONS LLC,
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`Defendant.
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`MOTION TO MODIFY LOCAL PATENT RULES &
`AMEND SCHEDULING ORDER
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`CASE NO: 2:22-CV-00828-CDS-BNW
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`Case 2:22-cv-00828-CDS-BNW Document 60 Filed 11/14/22 Page 2 of 6
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`Defendant R2 Solutions LLC (“R2”) respectfully requests that the Court modify the Local Patent
`Rules to cancel claim construction proceedings because claim construction is unnecessary. R2 also
`requests that the Court amend the scheduling order accordingly.
`FACTUAL BACKGROUND
`I.
`Plaintiff Allegiant Travel Company (“Allegiant”) filed this case seeking a declaratory judgment
`of non-infringement of seven R2 patents. R2 has moved to dismiss the case on three different grounds.
`See ECF 28. In its motion to dismiss, R2 contends that: (1) the Court lacks subject-matter jurisdiction
`because there is no justiciable case or controversy between the parties; (2) even if the Court has subject-
`matter jurisdiction, the Court should decline to exercise such jurisdiction under the Declaratory Judgment
`Act; and (3) the Court lacks personal jurisdiction over R2. Id. The Court has not yet ruled on R2’s motion
`to dismiss.
`On August 30, 2022, the Court entered a scheduling order1 setting deadlines appropriate for a
`typical patent case. See ECF 39. The scheduling order required Allegiant to serve its Disclosure of Non-
`Infringement Contentions by September 6, 2022, and R2 to serve its Disclosure of Asserted Claims and
`Infringement Contentions by October 18, 2022. ECF 39 at 4-5. Under the Court’s Patent Local Rules,
`R2’s response to Allegiant’s Disclosure of Non-Infringement Contentions was also due by October 18,
`2022. See LPR 1-11. The Court also set deadlines for claim construction proceedings, including deadlines
`for the parties to exchange terms for construction, exchange proposed constructions, and file claim
`construction briefs. ECF 39 at 4-5.
`Allegiant served its Initial Non-Infringement Contentions on September 6, 2022. See Ex. A. In its
`Initial Non-Infringement Contentions, Allegiant asserted that it did not infringe various claims of the
`seven R2 patents Allegiant identified in its Complaint. See id.
`On the same day, R2 filed a motion to stay discovery pending resolution of its motion to dismiss.
`ECF 44. R2 contended that it should not be made to respond to Allegiant’s Initial Non-Infringement
`Contentions or made to serve any Disclosure of Asserted Claims and Infringement Contentions because
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`1 In the parties’ Proposed Discovery Plan and Scheduling Order, R2 objected to entry of a schedule while
`R2’s motion to dismiss is pending. ECF 37 at 4. The Court adopted the deadlines proposed by Allegiant
`and directed R2 to “file an appropriate motion” if it sought to stay discovery. ECF 39 at 7.
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`MOTION TO MODIFY LOCAL PATENT RULES &
`AMEND SCHEDULING ORDER
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`1
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`CASE NO: 2:22-CV-00828-CDS-BNW
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`Case 2:22-cv-00828-CDS-BNW Document 60 Filed 11/14/22 Page 3 of 6
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`doing so would be “antithetical to R2’s argument that there is no justiciable dispute about infringement.”
`Id. at 5. The Magistrate Judge denied R2’s motion to stay on October 13, 2022. ECF 52. R2 filed an
`emergency appeal of the Magistrate Judge’s order denying R2’s motion to stay on October 14, 2022.
`ECF 53. On October 20, 2022, the Court affirmed the Magistrate Judge’s order denying R2’s motion to
`stay discovery. ECF 59. The Court directed R2 to “comply with the October 25, 2022 deadline by which
`it must serve its disclosure of asserted claims and infringement contentions and responses.” Id. at 1-2.
`On October 25, 2022, R2 served its Response to Allegiant Travel Company’s Non-Infringement
`Contentions and Notice Regarding Disclosure of Asserted Claims and Infringement Contentions. See Ex.
`B. In response to Allegiant’s Initial Non-Infringement Contentions, R2 stated that Allegiant is not
`entitled to a declaratory judgment of non-infringement “because there is no justiciable case or
`controversy,” “the Court lacks personal jurisdiction over R2,” and “[e]ven if the Court has subject-matter
`jurisdiction, it should decline to exercise such jurisdiction under the Declaratory Judgment Act.” Id. at 1.
`R2 “decline[d] to further contravene any statements in Allegiant’s Initial Non-Infringement Contentions
`to avoid creating the case or controversy that R2 maintains does not exist.” Id. R2 further “decline[d] to
`assert a claim for patent infringement to avoid creating a case or controversy that R2 maintains does not
`exist,” and thus did not serve any Disclosure of Asserted Claims and Infringement Contentions. Id. at 2.
`Five days before the parties were due to exchange proposed terms for construction, R2 proposed
`to Allegiant that the parties stipulate to cancel claim construction proceedings because, “[i]n light of R2’s
`response to Allegiant’s non-infringement contentions, . . . there is no reason for the parties to engage in
`claim construction proceedings.” Ex. C. In response, Allegiant requested that R2 stipulate to a judgment
`of non-infringement, upon which Allegiant would agree to cancel claim construction proceedings. Id. R2
`refused to stipulate to a judgment of non-infringement in light of its position that the Court lacks subject-
`matter and personal jurisdiction (or that the Court should decline to exercise jurisdiction), and re-iterated
`its position that, in light of R2’s response to Allegiant’s non-infringement contentions, claim construction
`is unnecessary. Id. Allegiant then stated its intent to file a motion for summary judgment, but refused to
`articulate why it believed that claim construction is necessary. Id. Allegiant instead simply stated that it
`opposed canceling claim construction proceedings. Id.
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`MOTION TO MODIFY LOCAL PATENT RULES &
`AMEND SCHEDULING ORDER
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`2
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`CASE NO: 2:22-CV-00828-CDS-BNW
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`Case 2:22-cv-00828-CDS-BNW Document 60 Filed 11/14/22 Page 4 of 6
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`II.
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`APPLICABLE LAW
`Under Local Patent Rule 1-3, “the court may modify the obligations and deadlines of the [Local
`Patent Rules] based on the circumstances of any particular case.” LPR 1-3. A party may propose a
`modification of the Local Patent Rules “by request upon a showing of good cause.” Id. A scheduling
`order “may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P. 16(b)(4).
`III. ARGUMENT
`There is good cause for modifying the Local Patent Rules to dispense with claim construction
`proceedings in this case and to modify the scheduling order accordingly. R2’s only response to
`Allegiant’s Initial Non-Infringement Contentions was that the Court lacks subject-matter and personal
`jurisdiction, or that it should at the very least decline to exercise jurisdiction. R2 declined to otherwise
`contravene any statements in Allegiant’s Non-Infringement Contentions. R2 also declined to assert a
`claim for patent infringement against Allegiant, and thus did not serve any Disclosure of Asserted Claims
`and Infringement Contentions.
`In light of R2’s positions, there are no issues in this case for which claim construction is relevant.
`The Court does not need to construe R2’s claims to determine whether Allegiant infringes—R2 has
`declined to assert a claim for infringement. Nor does the Court need to construe R2’s claims to determine
`whether they are valid. Allegiant has not sought a declaratory judgment of invalidity, and, because R2
`has not asserted a claim of infringement, Allegiant cannot assert invalidity as an affirmative defense. See
`35 U.S.C. § 282(b)(2) (“The following shall be defenses in any action involving the validity of
`infringement of a patent and shall be pleaded: . . . (2) Invalidity of the patent or any claim in suit.”). The
`Court need only determine whether it has (or will exercise) jurisdiction over this declaratory judgment
`action. Indeed, R2 informed Allegiant that if Allegiant files a motion for summary judgment of non-
`infringement, R2 would oppose “for the reasons statement in our motion to dismiss and in our response
`to Allegiant’s non-infringement contentions,” i.e., on the basis that the Court lacks jurisdiction (or should
`refuse to exercise such jurisdiction).
`Because claim construction is irrelevant to any issue before the Court, the Court need not construe
`any claims. The Federal Circuit has held that “only those terms need be construed that are in controversy,
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`MOTION TO MODIFY LOCAL PATENT RULES &
`AMEND SCHEDULING ORDER
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`CASE NO: 2:22-CV-00828-CDS-BNW
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`Case 2:22-cv-00828-CDS-BNW Document 60 Filed 11/14/22 Page 5 of 6
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`and only to the extent necessary to resolve the controversy.” See Vivid Techs., Inc. v. Am. Science &
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999); see also U.S. Surgical Corp. v. Ethicon, Inc., 103 F.3d
`1554, 1568 (Fed. Cir. 1997) (“Claim construction is a matter of resolution of disputed meanings and
`technical scope, to clarify and when necessary to explain what the patentee covered by the claims, for use
`in determining infringement. It is not an obligatory exercise in redundancy.” (emphasis added)). Because
`the Court does not need to construe any terms to resolve this case, it should cancel all claim construction
`proceedings.
`IV. CONCLUSION
`For the foregoing reasons, the Court should modify the Local Patent Rules and amend the
`scheduling order to cancel claim construction proceedings. Specifically, the Court should excuse the
`parties from compliance with LPR 1-13 through LPR 1-17, and should remove the following deadlines
`from the scheduling order:
`• Exchange of Proposed Terms for Construction
`• Exchange of Preliminary Claim Construction
`• Submit Joint Claim Construction and Prehearing Statement
`• Opening Claim Construction Brief
`• Response to Claim Construction Brief
`• Reply Claim Construction Brief and Matter Submitted to Court for Hearing
`• Claim Construction Tutorials, Hearing, and Order from the Court
`Dated: November 14, 2022
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`Respectfully submitted,
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`/s/ Edward R. Nelson III
`Joseph R. Ganley (5643)
`Brenoch R. Wirthlin (10282)
`HUTCHISON & STEFFEN, PLLC
`Peccole Professional Park
`10080 West Alta Drive, Suite 200
`Las Vegas, Nevada 89145
`jganley@hutchlegal.com
`bwirthlin@hutchlegal.com
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`MOTION TO MODIFY LOCAL PATENT RULES &
`AMEND SCHEDULING ORDER
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`4
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`CASE NO: 2:22-CV-00828-CDS-BNW
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`Case 2:22-cv-00828-CDS-BNW Document 60 Filed 11/14/22 Page 6 of 6
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`Edward R. Nelson III
`Christopher G. Granaghan
`John P. Murphy
`Carder W. Brooks
`NELSON BUMGARDNER CONROY PC
`3131 West 7th Street, Suite 300
`Fort Worth, TX 76107
`Telephone: (817) 377-9111
`ed@nelbum.com
`chris@nelbum.com
`murphy@nelbum.com
`carder@nelbum.com
`
`ATTORNEYS FOR DEFENDANT
`R2 SOLUTIONS LLC
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`CERTIFICATE OF SERVICE
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`I hereby certify that on November 14, 2022, I caused a true and correct copy of the foregoing
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`DEFENDANT R2 SOLUTIONS LLC’S MOTION TO MODIFY LOCAL PATENT RULES TO
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`CANCEL CLAIM CONSTRUCTION PROCEEDINGS AND TO AMEND SCHEDULING ORDER
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`ACCORDINGLY to be submitted electronically for filing and service with the United States District
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`Court for the District of Nevada via the Electronic Filing System to the following:
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`Patrick H. Hicks (4632)
`Kelsey E. Stegall (14279)
`LITTLER MENDELSON, P.C.
`3960 Howard Hughes Parkway, #300
`Las Vegas, Nevada 89169
`phicks@littler.com
`kstegall@littler.com
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`Michael A. Oblon
`JONES DAY
`51 Louisiana Avenue, N.W.
`Washington, D.C. 20001
`moblon@jonesday.com
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`Keith Davis
`JONES DAY
`2727 North Harwood
`Dallas, Texas 75201
`kbdavis@jonesday.com
`H. Albert Liou
`JONES DAY
`717 Texas Avenue, Suite 3300
`Houston, Texas 77002
`aliou@jonesday.com
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`Attorneys for plaintiff
`Allegiant Travel Company
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`/s/ Edward R. Nelson III
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`MOTION TO MODIFY LOCAL PATENT RULES &
`AMEND SCHEDULING ORDER
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`CASE NO: 2:22-CV-00828-CDS-BNW
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