Case 2:22-cv-00828-CDS-BNW Document 63 Filed 12/05/22 Page 1 of 4
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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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`REPLY IN SUPPORT OF 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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`REPLY IN SUPPORT OF MOTION TO MODIFY
`LOCAL PATENT RULES
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`CASE NO: 2:22-CV-00828-CDS-BNW
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`Case 2:22-cv-00828-CDS-BNW Document 63 Filed 12/05/22 Page 2 of 4
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`The only issues in this case are jurisdictional. There are no technical infringement issues for the
`Court to resolve. There are no validity issues for the Court to resolve. If there are no technical
`infringement or validity issues, there is no need for claim construction. Allegiant disputes none of this.
`Indeed, Allegiant represented that it will file a motion for summary judgment on the basis that its non-
`infringement contentions are uncontroverted and that claim construction is not necessary to decide it.1
`Allegiant insists nevertheless that the parties and the Court expend significant resources on claim
`construction because R2 will not stipulate to judgment of non-infringement. Resp. ECF 62 at 2-3. This is
`nonsense. R2 has told Allegiant that it is not raising infringement issues in this case. If the Court
`determines that it has, and will exercise, jurisdiction, the case is essentially over pending appeal. But R2
`cannot simply stipulate to judgment against it. R2 filed a motion to dismiss on jurisdictional grounds, and
`that motion remains pending. ECF 28. Agreeing to the relief Allegiant seeks would risk waiving some or
`all of R2’s jurisdictional arguments. See, e.g., Aeration Solutions, Inc. v. Dickman, 85 F. App’x 772, 775
`(Fed. Cir. 2004) (holding that defendants waived personal jurisdiction defense by stipulating to
`injunction). Thus, as R2 told Allegiant during the meet-and-confer process, R2 will oppose Allegiant’s
`forthcoming motion for summary judgment on the same grounds R2 asserted in its motion to dismiss and
`its response to Allegiant’s non-infringement contentions. ECF 60-4 at 2. Because R2 has declined to
`assert infringement or otherwise contravene Allegiant’s non-infringement contentions, that will be R2’s
`only response.
`Allegiant implies that R2 is engaged in a nefarious plot to “cancel discovery only temporarily”
`and later “reverse its position about infringement” if the Court denies R2’s motion to dismiss. ECF 62 at
`3. To be clear, R2 is not raising, and will not raise, infringement issues in this case. R2 believes that the
`Court lacks subject-matter and personal jurisdiction, or, at the very least, should not exercise subject-
`matter jurisdiction under the Declaratory Judgment Act. If the Court disagrees, then R2 will appeal. But
`R2 will not assert infringement here. If infringement is not at issue in this case, neither is validity. And if
`neither infringement nor validity are at issue, claim construction is irrelevant. See Vivid Techs., Inc. v.
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`1 Despite stating that it planned on filing its motion for summary judgment the same week that it filed its
`response to R2’s Motion to Modify Local Patent Rules to Cancel Claim Construction and to Amend
`Scheduling Order Accordingly (ECF 62 at 2), Allegiant has yet to file its motion for summary judgment.
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`REPLY IN SUPPORT OF MOTION TO MODIFY
`LOCAL PATENT RULES
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`CASE NO: 2:22-CV-00828-CDS-BNW
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`Case 2:22-cv-00828-CDS-BNW Document 63 Filed 12/05/22 Page 3 of 4
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`Am. Science & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be construed
`that are in controversy, and only to the extent necessary to resolve the controversy.”).
`Finally, Allegiant accuses R2 throughout its response of ignoring its discovery obligations and the
`Court’s rules. Allegiant is wrong. In response to R2’s motion to stay discovery, the Court ordered R2 to
`“take a position.” ECF 59 at 3-4. That is what R2 did—it explicitly informed Allegiant that it was not
`asserting infringement and that it declined to contravene Allegiant’s non-infringement contentions on any
`basis other than the bases raised in R2’s motion to dismiss. ECF 60-3. Once R2 took this position, it
`made all issues other than the jurisdictional ones irrelevant. R2 thus objected to Allegiant’s first set of
`requests for production because the issues to which they are directed (mostly validity) are irrelevant.
`And, on the deadline to exchange claim terms and phrases for construction, R2 complied with the
`deadline by informing Allegiant that it did not believe any terms require construction. ECF 62-2. That is
`just the natural result of R2’s decision not to assert infringement. The Court should recognize as much
`and cancel all claim construction proceedings as unnecessary and a waste of resources.
`Dated: December 5, 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
`
`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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`REPLY IN SUPPORT OF MOTION TO MODIFY
`LOCAL PATENT RULES
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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 63 Filed 12/05/22 Page 4 of 4
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`ATTORNEYS FOR DEFENDANT
`R2 SOLUTIONS LLC
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`CERTIFICATE OF SERVICE
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`I hereby certify that on December 5, 2022, I caused a true and correct copy of the foregoing
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`DEFENDANT R2 SOLUTIONS LLC’S REPLY IN SUPPORT OF MOTION TO MODIFY LOCAL
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`PATENT RULES TO CANCEL CLAIM CONSTRUCTION PROCEEDINGS AND TO AMEND
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`SCHEDULING ORDER ACCORDINGLY to be submitted electronically for filing and service with the
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`United States District 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
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`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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`REPLY IN SUPPORT OF MOTION TO MODIFY
`LOCAL PATENT RULES
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`CASE NO: 2:22-CV-00828-CDS-BNW
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