Case 2:15-cv-02340-MWF-PLA Document 42 Filed 02/08/16 Page 1 of 7 Page ID #:5326
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`IRELL & MANELLA LLP
`Jonathan S. Kagan (166039)
`JKagan@irell.com
`Joshua Glucoft (301249)
`JGlucoft@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, California 90067-4276
`Telephone: (310) 277-1010
`Facsimile:
`(310) 203-7199
`
`Attorneys for Plaintiff
`Prime Focus Creative Services
`Canada Inc.
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`Plaintiff Prime Focus Creative Services Canada Inc. (“Prime Focus”)
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`respectfully submits this Opposition to defendant Legend3D, Inc.’s (“Defendant”)
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`Motion to Strike (Docket No. 41, the “Motion”). Citations below to Defendant’s
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`Motion relate to pagination within Defendant’s Motion, not to ECF page numbers.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`7056461.7
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`- 1 -
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`OPPOSITION TO MOTION TO STRIKE
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`(Case No. 2:15-CV-02340-MWF-PLA)
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`Case No. 2:15-CV-02340-MWF-PLA
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`PRIME FOCUS’S OPPOSITION TO
`DEFENDANT’S MOTION TO
`STRIKE
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`Time: 10:00am
`Date: February 29, 2016
`Dept.: 1600
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`Judge: Hon. Michael W. Fitzgerald
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`PRIME FOCUS CREATIVE
`SERVICES CANADA INC.,
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`Plaintiff,
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`LEGEND3D, INC.,
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`Defendant.
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`v.
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`Legend3D, Inc.
`Exhibit 1021-0001
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`

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`Case 2:15-cv-02340-MWF-PLA Document 42 Filed 02/08/16 Page 2 of 7 Page ID #:5327
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`INTRODUCTION
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`Although this Court has yet to construe any terms from the patent-in-suit—
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`and, in fact, discovery on this issue has not yet begun—Defendant has chosen to file
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`a Motion to Strike portions of the complaint related to highly technical features of
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`the patented invention. The information that Defendant seeks to strike relates to
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`complex technology embedded in the patented invention, and it is not yet time for
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`this Court and the parties to argue about the meaning of that technology or how it is
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`defined in the patent, prosecution history, and the related inter partes review
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`proceedings. There will be plenty of time for the parties to argue about the
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`technology of Prime Focus’s patent, but that time is not now, and a motion to strike
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`is not the proper vehicle to tee up, much less resolve, these types of disputes. To the
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`extent that this Court believes that the pleadings in this case should address any of
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`the issues raised in Defendant’s Motion, Prime Focus respectfully seeks leave of
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`Court to amend its complaint to address any such issues.
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` “As a general proposition, motions to strike are ‘regarded with disfavor
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`ARGUMENT
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`because [they] are often used as delaying tactics, and because of the limited
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`importance of pleadings in federal practice.’” S.E.C. v. Sands, 902 F. Supp. 1149,
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`1165-66 (C.D. Cal. 1995) (citing William W. Schwarzer et al., Federal Civil
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`Procedure Before Trial § 9:375). In determining whether to strike “redundant,
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`immaterial, [or] impertinent” allegations from a pleading pursuant to Fed. R. Civ. P.
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`12(f), “the court views the pleadings in the light most favorable to the non-moving
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`party, and resolves any doubt as to the relevance of the challenged allegations . . . in
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`[the non-moving party’s] favor.” Cal. Dept. of Toxic Substances Control v. Alco
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`Pacific, Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002) (internal citations
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`omitted). “Matter will not be stricken from a pleading unless it is clear that it can
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`have no possible bearing upon the subject matter of the litigation; if there is any
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`doubt as to whether under any contingency the matter may raise an issue, the motion
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`7056461.7
`
`
`
`- 2 -
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`OPPOSITION TO MOTION TO STRIKE
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`(Case No. 2:15-CV-02340-MWF-PLA)
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`Legend3D, Inc.
`Exhibit 1021-0002
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`

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`Case 2:15-cv-02340-MWF-PLA Document 42 Filed 02/08/16 Page 3 of 7 Page ID #:5328
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`may be denied.” 1 Id. (citing Wailua Assocs. v. Aetna Casualty and Surety Co., 183
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`F.R.D. 550, 553–54 (D. Haw. 1998)).
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`The portions of the complaint that Defendant seeks to strike are not
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`“redundant, immaterial, [or] impertinent”; rather, these portions are fundamental
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`elements of Prime Focus’s complaint for patent infringement. They are therefore
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`not properly subject to a motion to strike. See Fed. R. Civ. P. 12(f). Indeed,
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`Defendant is not using its Motion to remove irrelevant material from Prime Focus’s
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`complaint, but rather to rewrite Prime Focus’s complaint (and patent) by striking all
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`references to horizontal displacement in paragraph 19 of the First Amended
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`Complaint. See Motion p. 6-7. But the references to horizontal displacement in
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`Prime Focus’s patent and complaint are not irrelevant, which is precisely why Prime
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`Focus included these statements in its complaint. While Defendant may not like
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`Prime Focus’s position on horizontal displacement, it has no legitimate basis to
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`strike them from a complaint that must be read in a way most favorable to Prime
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`Focus. See Toxic Substances Control, 217 F. Supp. 2d at 1033.
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`If this were the appropriate time for this Court to educate itself and resolve
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`issues of horizontal and vertical displacement, it would become clear that horizontal
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`displacement is a part of Prime Focus’s invention, as at least one embodiment of the
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`invention disclosed in the patent-in-suit (the “Bond Patent”) expressly provides for
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`horizontal displacement. Figure 10 of the Bond Patent, which is presented as “an
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`exemplary illustration of a transformation process performed on an image in
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`1 In order to strike matter from a pleading, “courts often [also] require a
`showing of prejudice by the moving party.” Sands, 902 F. Supp. at 1166. The
`Motion does not explain at all how Defendant would be prejudiced by the contested
`portions of the complaint. See, e.g., Motion p.10-11 (stating in a one-sentence
`paragraph that allowing Prime Focus to amend would be unduly prejudicial, but not
`following with any substantive discussion as to how). The Motion should thus be
`denied at least because Defendant has made no real showing of prejudice.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`7056461.7
`
`
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`- 3 -
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`OPPOSITION TO MOTION TO STRIKE
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`(Case No. 2:15-CV-02340-MWF-PLA)
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`Legend3D, Inc.
`Exhibit 1021-0003
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`

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`Case 2:15-cv-02340-MWF-PLA Document 42 Filed 02/08/16 Page 4 of 7 Page ID #:5329
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`accordance with an embodiment of the present invention” (col. 10 l. 50-52), clearly
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`shows pixels being displaced both horizontally and vertically at the same time:
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`In fact, contrary to Defendant’s argument, the Bond Patent expressly contemplates
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`that pixel displacement would usually occur only in the horizontal direction: “Due to
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`the fact that disparities in stereo images are typically exhibited only horizontally, in
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`some embodiments, the vectors in the vector field have only a non-zero x [i.e.,
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`horizontal] component, while the y [i.e., vertical] component is set to 0 . . . .” Bond
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`Patent col. 30 l. 24-27. This horizontal-only displacement is most common because
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`a person’s eyes are offset from each other directly horizontally, and therefore there
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`is usually no need to create left- and right-eye images that are offset vertically. See,
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`e.g., Bond Patent col. 1. l 22 – col. 2 l. 12. Horizontal displacement is thus critical
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`to the invention of the Bond Patent, and striking any such references as “immaterial
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`[or] impertinent” would deprive the Bond Patent of some of its real-world
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`applicability. See Toxic Substances Control, 217 F. Supp. 2d at 1032-33.
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`Although Defendant remains free to raise its claim construction arguments
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`about the prosecution history and inter partes review at an appropriate time,
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`Defendant’s unsuccessful attempt to obtain an inter partes review (“IPR”) of the
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`Bond Patent did not lead to any prosecution history estoppel or judicial estoppel.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`7056461.7
`
`
`
`- 4 -
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`OPPOSITION TO MOTION TO STRIKE
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`(Case No. 2:15-CV-02340-MWF-PLA)
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`Legend3D, Inc.
`Exhibit 1021-0004
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`

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`Case 2:15-cv-02340-MWF-PLA Document 42 Filed 02/08/16 Page 5 of 7 Page ID #:5330
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`Rather, the USPTO simply adopted the definition of “vector field” found in the
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`“dictionary of terms” within the specification of the Bond Patent itself. See
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`Legend3D, Inc. v. Prime Focus Creative Services Canada Inc., No. IPR 2015-
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`01350, Paper 14, 6-8 (PTAB Dec. 21, 2015). The definition of “vector field” in the
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`Bond Patent, adopted verbatim by the USPTO, is “a mathematical construction
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`which associates a multidimensional vector to each point in a Euclidean space.”
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`Bond Patent col. 12 l. 56-59. Because this definition recites a “multidimensional
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`vector,” it is not clear why Defendant argues that one of these dimensions cannot be
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`horizontal, particularly in light of Figure 10 of the Bond Patent shown above. To be
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`sure, horizontal displacement was not disclaimed in the IPR because no disclaimer
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`was necessary to avoid the prior art at issue. As the USPTO found, the prior art
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`disclosed only a one-dimensional vector oriented horizontally; that vector visually
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`looks the same as, but is mathematically distinct from, the Bond Patent’s
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`multidimensional vector with a vertical component set to zero such that it is also
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`oriented horizontally. See Legend3D, IPR 2015-01350, Paper 14 at 9-11. In other
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`words, as the USPTO explained, one could use horizontal vectors in a manner
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`consistent with the Bond Patent by setting the vertical component of a
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`multidimensional vector to zero. See id. Striking any reference to horizontal
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`displacement would effectively change the meaning and scope of the Bond Patent
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`from what the USPTO has already found it to be. Although this Court may
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`ultimately make a determination different from what the USPTO found, Prime
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`Focus does not believe that the appropriate vehicle to make such a finding is a
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`motion to strike.
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`Moreover, this Court has not yet conducted its own claim construction and
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`therefore it is premature for Defendant to argue that allegations in the Complaint are
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`immaterial based on claim construction, regardless of how the USPTO construed the
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`claims. This Court will apply a different standard in its claim construction than the
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`USPTO applied. Compare 37 C.F.R. § 42.100(b) (2014) (applying the “broadest
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`7056461.7
`
`
`
`- 5 -
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`OPPOSITION TO MOTION TO STRIKE
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`(Case No. 2:15-CV-02340-MWF-PLA)
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`Legend3D, Inc.
`Exhibit 1021-0005
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`

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`Case 2:15-cv-02340-MWF-PLA Document 42 Filed 02/08/16 Page 6 of 7 Page ID #:5331
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`reasonable construction” in IPR proceedings), with Phillips v. AWH Corp., 415 F.3d
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`1303, 1313 (Fed. Cir. 2005) (en banc) (applying the “ordinary and customary
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`meaning . . . that the term would have to a person of ordinary skill in the art in
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`question at the time of the invention” in district court proceedings). Accordingly, it
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`is too early for Defendant to argue that the claims of the Bond Patent are limited to a
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`particular meaning for purposes of this District Court litigation. Until this Court
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`construes the meaning of key claim terms, Prime Focus cannot be precluded from
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`alleging facts consistent with its own interpretation of the claims. Furthermore,
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`although claim construction is a question of law,2 “Even when the [motion to strike]
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`presents a purely legal question, courts are reluctant to determine disputed or
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`substantial questions of law on a motion to strike.” Sands, 902 F. Supp. at 1166.
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`The meaning of certain key claim terms will likely be a central dispute between the
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`parties, and resolving that dispute on a motion to strike before this Court’s own
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`claim construction puts the cart before the horse. See id.
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`Although not relevant to a motion to strike, Defendant dedicates much of its
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`Motion presenting a litigation argument relating to how Defendant’s processes
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`work. See, e.g., Motion p. 4-6. A motion to strike is simply not the proper vehicle
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`to resolve a factual dispute over how Defendant converts movies from 2D into 3D.
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`In assessing a motion to strike, the Court simply “should not weigh the evidence” if
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`there is a factual dispute; in those situations, the motion to strike should be
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`denied. See Sands, 902 F. Supp. at 1166; Lowry v. City of San Diego, No. 11-CV-
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`946-MMA WMC, 2012 WL 1154926, at *3 (S.D. Cal. Apr. 5, 2012) (“Plaintiff's
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`motion to strike is inappropriate because a factual dispute exists concerning whether
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`the City and its employees acted under the color of law.”). This is not a motion for
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`2 Claim construction may also involve underlying factual questions regarding
`the extrinsic record. Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 837-38
`(2015). Accordingly, the Motion should also be denied because there may be
`underlying factual disputes regarding claim construction that are particularly ill-
`suited for resolution in a motion to strike. See Sands, 902 F. Supp. at 1166.
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`7056461.7
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`
`
`- 6 -
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`OPPOSITION TO MOTION TO STRIKE
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`(Case No. 2:15-CV-02340-MWF-PLA)
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`Legend3D, Inc.
`Exhibit 1021-0006
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`

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`Case 2:15-cv-02340-MWF-PLA Document 42 Filed 02/08/16 Page 7 of 7 Page ID #:5332
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`summary judgment. As far as this Motion is concerned, the only thing that should
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`be considered is whether there are simple questions of law that are not subject to any
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`dispute, and the challenged portions of the complaint do not embody that kind of
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`material.
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`CONCLUSION
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`The Motion to Strike should be denied because the contested portions of the
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`complaint that Defendant seeks to strike are not irrelevant. By discussing how its
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`own processes work, Defendant tacitly concedes that there is at least a genuine
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`factual dispute as to whether the allegations are material. The IPR proceedings in
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`front of the USPTO do not create a basis for finding prosecution history estoppel or
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`judicial estoppel and, even if they did, it would be inappropriate to resolve that
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`argument in a motion to strike. Defendant’s Motion is thus improper at this stage of
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`the litigation and Prime Focus respectfully asks this Court to deny Prime Focus’s
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`motion in full. If there are issues in the Complaint about which the Court would like
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`additional information included in the pleadings, Prime Focus would request leave
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`of Court to make whatever changes the Court deems necessary after hearing from
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`both sides.
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`IRELL & MANELLA LLP
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`By: /s/Jonathan Kagan
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`Jonathan Kagan
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`Attorneys for Plaintiff
`PRIME FOCUS CREATIVE
`SERVICES CANADA INC.
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`Dated: February 8, 2016
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`IRELL & MANELLA LLP
`A Registered Limited Liability
`Law Partnership Including
`Professional Corporations
`
`7056461.7
`
`
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`- 7 -
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`OPPOSITION TO MOTION TO STRIKE
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`(Case No. 2:15-CV-02340-MWF-PLA)
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`Legend3D, Inc.
`Exhibit 1021-0007