CHRIS R. OTTENWELLER (State Bar No. 73649)
`cottenweller@orrick.com
`BAS DE BLANK (State Bar No. 191487)
`basdeblank@orrick.com
`L. KIERAN KIECKHEFER (State Bar No. 251978)
`kkieckhefer@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`1000 Marsh Road
`Menlo Park, CA 94025
`Telephone:
`650-614-7400
`Facsimile:
`650-614-7401
`
`ANNETTE L. HURST (State Bar No. 148738)
`ahurst@orrick.com
`ORRICK, HERRINGTON & SUTCLIFFE LLP
`The Orrick Building
`405 Howard Street
`San Francisco, CA 94105-2669
`Telephone: (415) 773-5700
`Fax: (415) 773-5759
`
`Attorneys for Plaintiff
`ROBERT BOSCH HEALTHCARE SYSTEMS, INC.
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`ROBERT BOSCH HEALTHCARE
`SYSTEMS, INC.,
`
`Plaintiff,
`
`v.
`
`CARDIOCOM, LLC,
`
`Defendant.
`
`Case No. 12-cv-3864 EJD
`BOSCH’S OPPOSITION TO
`CARDIOCOM’S NOTICE OF
`MOTION AND MOTION TO STAY
`LAWSUIT PENDING
`REEXAMINATION OF PATENTS-
`IN-SUIT
`
`Date:
`Time:
`Judge:
`Ctrm:
`
`November 16, 2012
`9:00 a.m.
`Hon. Edward J. Davila
`4
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`BOSCH’S OPPOSITION TO CARDIOCOM’S NOTICE OF
`MOTION AND MOTION TO STAY LAWSUIT
`CASE NO. 12-CV-3864 EJD
`
`CARDIOCOM EXH 1021
`CARDIOCOM v. BOSCH IPR2013-00431, 449, 468
`
`

`

`competitors in the telehealth market space and, for each day this litigation is protracted, Bosch
`
`will continue to be harmed in ways that cannot be reversed or compensated for. Bachmann Decl.
`
`¶¶ 2-4; see Section IIA, supra. Such prejudice should mandate the denial of a stay in this action.
`
`As discussed above, this very Court has recognized that, “[u]nlike patent infringement
`
`actions involving non-practicing entities, infringement among competitors can cause harm in the
`
`marketplace that is not compensable by readily calculable money damages.” Avago, 2011 U.S.
`
`Dist. LEXIS 82665, at *16 (citing to Acumed LLC v. Stryker Corp., 551 F.3d 1323, 1327-28 (Fed.
`
`Cir. 2008)). While in some other situations money damages may adequately compensate for a
`
`patent-holder’s infringement losses during the stay, the “possibility remains that the patent holder
`
`could lose market share or drop out of the market entirely during that period.” See, e.g., ADA
`
`Solutions, Inc. v. Engineered Plastics, Inc., 826 F. Supp. 2d 348, 351 (D. Mass. 2011) (citation
`
`omitted). Granting a stay and thereby allowing the harm to continue unabated would “prejudice[]
`
`the patentee that seeks timely enforcement of its right to exclude.” Avago, 2011 U.S. Dist.
`
`LEXIS 82665, at *16 (citing to Tesco Corp. v. Weatherford Int’l, Inc., 599 F. Supp. 2d 848, 851
`
`(S.D. Texas 2009)). Further, this Court has found that even “‘ordinary’ competition can justify
`
`denial of a stay when that competition is based on alleged infringement and has effects that would
`
`be difficult to reverse after the fact.” Avago, 2011 U.S. Dist. LEXIS 82665, at *16-17.
`
`Here, Bosch will be substantially harmed if this Court grants the stay, and, despite
`
`Cardiocom’s claims to the contrary, such harm cannot be “fully compensated with damages.”
`
`
`
`Cardiocom Motion at 12:3-5. The telehealth field is a relatively new and growing field, whereinThe telehealth fiff eld is a relatively new and growing fiff eld, wherein
`
`competitive telehealth companies are struggling to establish themselves in the market place and tocompmm etitive telehealth companies are struggrr ling to estaba lish themselves in the market place and to
`
`
`
`
`
`
`
`
`
`secure their section of the market. Time is of the essence for Bosch not only to establish marketsecure their section of the markrr et. T
`
`share, but also to develop relationships and contracts with independent healthcare providers and
`
`cultivate relationships with patients. Bachmann Decl. ¶ 3. The value of these initial relationships
`
`and contracts cannot be overstated. Most healthcare providers will evaluate the product that best
`
`fits their needs and the needs of their patients. Once a telehealth system is selected, healthcare
`
`providers will spend substantial quantities of money purchasing high volumes of the equipment
`
`and devices compatible with the chosen service. Id. It is expected that these healthcare providers
`
`- 6 -
`
`BOSCH’S OPPOSITION TO CARDIOCOM’S NOTICE OF
`MOTION AND MOTION TO STAY LAWSUIT
`CASE NO. 12-CV-3864 EJD
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`

`

`will expend substantial resources to educate teams of doctors, nurses, staff, and patients regarding
`
`how to use the specific telehealth system. Additionally, once a telehealth system is instituted and
`
`all respective parties are knowledgeable about the system, it is also expected that healthcare
`
`providers will be particularly reluctant – provided the service functions well – to switch to a
`
`different telehealth company shortly thereafter. Further, once a healthcare provider is signed on
`
`to a given telehealth system, the relationship is formed and that telehealth company has the
`
`opportunity to discuss and expand the level of telehealth services with a given company or to add
`
`on additional features or services at a later time. Id. ¶ 4.
`
`Here, Cardiocom is unfairly competing with Bosch in the market for these key contracts
`
`and key relationships by offering products and services that use Bosch intellectual property.
`
`Further, many companies may choose the Cardiocom system in part because of the Bosch
`
`intellectual property, creating a situation wherein Bosch is effectively competing with itself for
`
`business. Cardiocom will not be able to compensate Bosch for the lost relationships,
`
`opportunities, and market share Cardiocom reaped in part because of technology that infringed
`Bosch’s patents.4
`Further, the U.S. Department of Veterans Affairs has created a set and defined market for
`
`Cardiocom and Bosch to compete in and the opportunity to capitalize on that market will extend
`only for the next four and a half years. Bachmann Decl. ¶ 3. Many of these contracts require
`features that are covered by the patents-in-suit and, therefore, the only way that Cardiocom can
`
`compete is if it infringes Bosch’s patents. Id. ¶ 3. Given that the PTO currently estimates the
`
`length of inter partes reexaminations to last over three years, the stay would effectively grant
`
`Cardiocom carte blanche compete against Bosch in this set market space with a product that
`
`utilizes Bosch intellectual property. Cardiocom similarly will not be able to adequately
`
`compensate Bosch for the lost relationships, opportunities, and market share made available by
`
`this unique sub-market.
`
`4 Cardiocom states that Bosch will not suffer prejudice, in part, because Bosch’s predecessor-in-
`interest, Health Hero, consented to a stay pending reexamination in a separate litigation.
`Cardiocom Motion at 11:18-23. Such argument is irrelevant. The fact that Health Hero, when it
`was not even affiliated with Bosch, agreed to a stay in an unrelated litigation has no bearing on
`the issues in this litigation.
`
`- 7 -
`
`BOSCH’S OPPOSITION TO CARDIOCOM’S NOTICE OF
`MOTION AND MOTION TO STAY LAWSUIT
`CASE NO. 12-CV-3864 EJD
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`