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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`) Docket No. 15 C 00799
`)
`) Chicago, Illinois
`) January 12, 2016
`) 11:41 a.m.
` )
`
`))
`
`)
`
`ROSETTA-WIRELESS CORP.,
`
`Plaintiff,
`
`v.
`
`APPLE, INC.,
`
`Defendant.
`
`TRANSCRIPT OF PROCEEDINGS - Motion Hearing
`BEFORE THE HONORABLE JOAN HUMPHREY LEFKOW
`
`APPEARANCES:
`
`For the Plaintiff:
`
`For the Defendant:
`
`KOBRE & KIM, LLP, by
`MR. MICHAEL K. NG
`150 California Street
`San Francisco, CA 94111
`
`SCHIFF HARDIN, LLP, by
`MS. STACIE R. HARTMAN
`233 South Wacker Drive
`Suite 6600
`Chicago, IL 60606-6473
`
`WEIL, GOTSHAL & MANGES, LLP, by
`MR. BRIAN E. FERGUSON
`1300 Eye Street NW
`Suite 900
`Washington, DC 20005
`
`For Defendant Samsung:
`
`ROPES and GRAY, by
`MR. RICHARD T. McCAULLEY
`191 North Wacker Drive
`32nd Floor
`Chicago, IL 60606
`
`LG Electronics, Inc. et al.
`EXHIBIT 1031
`IPR2016-01516
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`APPEARANCES (Continued):
`
`For Defendant Motorola Mobility, LLC:
`
`ROPES & GRAY, LLP, by
`MR. MATTHEW J. RIZZOLO
`2099 Pennsylvania Avenue NW
`Washington, DC 20006
`
`For Defendant LG Electronics:
`
`FIGLIULO & SILVERMAN, by
`MS. LISA M. MAZZONE
`Ten South LaSalle Street
`Suite 3600
`Chicago, IL 60603
`
`ROTHWELL, FIGG, ERNST & MANBECK, P.C., by
`MS. JENNY L. COLGATE
`607 14th Street NW
`Suite 800
`Washington, DC 20005
`
`For Defendant HTC:
`
`SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP, by
`MR. BRADLEY C. GRAVELINE
`70 West Madison Street
`48th Floor
`Chicago, IL 60602
`
`Court Reporter:
`
`LISA H. BREITER, CSR, RMR, CRR
`Official Court Reporter
`219 S. Dearborn Street, Room 1728
`Chicago, IL 60604
`(312) 818-6683
`lisa_breiter@ilnd.uscourts.gov
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`(In open court.)
`
`THE CLERK: 15 C 799, Rosetta-Wireless v. Apple.
`
`MR. NG: Good morning, your Honor. Michael Ng for
`
`plaintiff Rosetta-Wireless.
`
`THE COURT: Good morning.
`
`MS. HARTMAN: Good morning, your Honor. Stacie
`
`Hartman for defendant Apple. With me is lead counsel Brian
`
`Ferguson from Weil Gotshal for Apple.
`
`MR. FERGUSON: Good morning, your Honor.
`
`THE COURT: Good morning.
`
`MR. McCAULLEY: Good morning, your Honor. Richard
`
`McCaulley for the Samsung defendants.
`
`MR. RIZZOLO: Good morning, your Honor. Matt Rizzolo
`
`from Motorola Mobility.
`
`MS. MAZZONE: Lisa Mazzone for the LG defendants.
`
`MS. COLGATE: Jenny Colgate, C-O-L-G-A-T-E, also for
`
`the LG defendants.
`
`MR. GRAVELINE: Good morning, your Honor. Brad
`
`Graveline for HTC.
`
`THE COURT: Apple filed something, but is Apple here?
`
`MR. FERGUSON: Yes, your Honor. Brian Ferguson and
`
`Stacie Hartman for Apple.
`
`THE COURT: Well, I guess the first order of
`
`business -- and correct me if I'm wrong -- is the motion for
`
`pretrial consolidation. So where do the defendants stand on
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`that?
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`MR. FERGUSON: Well, your Honor, speaking for Apple,
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`of course, our case is moving forward. The other defendants,
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`as it currently stands, the cases were dismissed and refiled.
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`And so we have a schedule moving forward. We filed a
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`scheduling order with your Honor. But I believe that the other
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`defendants would object to having their schedule merged into
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`the Apple schedule, and I think I'll allow the other defendants
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`to speak up on that.
`
`MR. McCAULLEY: Richard McCaulley on behalf of the
`
`Samsung defendants.
`
`Your Honor, we certainly understand that there will be
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`some form of consolidation in the case. At this point we
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`haven't been reassigned to another judge, and so I think --
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`THE COURT: I have to grant this motion first.
`
`MR. McCAULLEY: Well, certainly Samsung -- yes, I
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`think it's accurate. At this point it would be impractical for
`
`us to operate, at least from our perspective, on the Apple
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`schedule. But we're certainly happy to meet and confer and try
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`and find a consolidated schedule that makes sense for all the
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`parties.
`
`THE COURT: LG?
`
`MS. COLGATE: Your Honor, Jenny Colgate on behalf of
`
`LG defendants.
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`Like Samsung, LGE USA is amenable to consolidation as
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`long as it would be a different schedule than that entered in
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`the Apple case. But with regard to LGE, that party has not yet
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`been served so they should be carved out from any
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`consolidation.
`
`MR. RIZZOLO: Your Honor, Matt Rizzolo for Motorola
`
`Mobility.
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`Like the Samsung defendants, we are not opposed to
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`some sort of consolidation, but we would like to be able to
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`meet and confer regarding the exact mechanics of that.
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`THE COURT: All right. Well, we're trying to get --
`
`sorry.
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`MR. GRAVELINE: One more defendant, your Honor. Brad
`
`Graveline on behalf of HTC, and our position is similar. One
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`of the HTC defendants has not yet been served, and we have a
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`motion to dismiss pending for improper venue as well.
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`THE COURT: Okay, so --
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`MR. NG: Your Honor, can I just give you plaintiff's
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`perspective? We've had some discussions about scheduling and
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`some of these other issues. Obviously everyone was served with
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`the substance of the case last year, so folks know what's
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`happening.
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`I think that there's general agreement that on most
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`parts of the consolidation, we have some disagreement over how
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`we handle depositions of our clients and the pretrial. I think
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`those are things that we can continue to discuss and submit to
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`your Honor for resolution, if need be.
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`We're still talking about a schedule. We have some
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`flexibility on the schedule to sync everything up, I think.
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`Some of the initial disclosures are obviously going to flow in
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`at different times, but we think that by the time of Markman,
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`we can get the schedule synced up. And we're certainly
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`flexible to allow that to happen and not prejudice the parties.
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`THE COURT: So I'll grant the motion for pretrial
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`consolidation for discovery supervision and Markman or a claim
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`construction hearing, although I will consult with other judges
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`who I feel sure will not mind if I do this. But that should
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`be -- that way, we'll get something going. You can get a
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`scheduling order in place and so on.
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`Now, let's talk about this service issue.
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`MS. COLGATE: One thing, your Honor, just to clarify,
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`LGE will be carved out from that consolidation?
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`THE COURT: Well, all right, is your firm going to
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`represent them if they ever get served?
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`MS. COLGATE: Yes.
`
`THE COURT: Well, then no, I don't -- I won't carve it
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`out. You know if they ended up being dismissed or something,
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`it's still -- that would be a motion that would go to the
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`assigned judge in any event. So I think we're all -- it
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`doesn't make sense to carve it out.
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`Now, we have Apple's motion for judgment on the
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`pleadings. How does the plaintiff want to respond to that?
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`MR. NG: Your Honor, we'll file an opposition.
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`Obviously we would propose February 2nd as the due date for the
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`opposition, and then February 12th for the reply. If they want
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`a little bit more time than that, no problem with that on the
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`reply.
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`Honor.
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`THE COURT: Is that good with Apple?
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`MR. FERGUSON: That would be fine with Apple, your
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`THE COURT: All right. So then that will be taken
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`under advisement. And then we have motions regarding service,
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`motion for alternative service.
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`MR. NG: Your Honor, we just got yesterday we have HTC
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`and LG, the corporate parents for each of those. HTC
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`Corporation yesterday filed an opposition.
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`I think we're -- it seems like it's resolved because
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`they said they will accept service on behalf of the corporate
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`parent.
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`MR. GRAVELINE: That's correct, your Honor.
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`MR. NG: I'm guessing that they're going to want to
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`join the subsidiary's motion to dismiss for lack of venue, and
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`we'd be fine with deeming that having been filed on both
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`entities' behalf, if they want to do that. The issues are the
`
`same, I believe.
`
`MR. GRAVELINE: You know what, we'll consider that.
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`

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`Then if we decide to join, we'll just file a motion to join.
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`We're just a joinder.
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`THE COURT: So the motion for alternative service with
`
`respect to HTC is resolved by agreement?
`
`MR. GRAVELINE: Correct.
`
`THE COURT: So now we have the other one, LGE.
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`MR. NG: Yes, your Honor. And you know, our position
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`is counsel's here. LG agreed to service the last time around.
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`You know, they've actually filed an opposition on behalf of the
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`corporate parent.
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`There's a little bit of artifice here, I suppose, in
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`that, you know, there's no question that the parent's already
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`been in the case. And but for the fact that your Honor decided
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`to resolve the consolidation issue with the dismissal rather
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`than a severance, you know, substantively it would have been
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`the same, but now we have to go through the rigmarole of
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`serving them in Korea.
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`THE COURT: All right. So the law is really on LGE's
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`side as far as I can tell, but does it make any sense to delay
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`this case to go through? So what do you have to say?
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`MS. COLGATE: Your Honor, we think that the law is on
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`our side, as you said. I mean, the federal rule is clear that
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`in order for a motion for alternative service to be granted
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`that Rosetta should have at least attempted to serve.
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`There's no evidence that LGE is trying to evade
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`service. In fact, LGE offered to waive service. We offered to
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`respond on January 29th. Rosetta was unwilling to agree to
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`that. So we don't think that there's any grounds for granting
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`the motion.
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`THE COURT: Well, if you were to -- if I were to give
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`you whatever time you needed, then would that make this dispute
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`go away?
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`MS. COLGATE: I mean, it's our position that the other
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`side should have to --
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`THE COURT: I know what your position is, but you,
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`like me, are supposed to work toward the just, speedy and
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`inexpensive resolution of this dispute. So what is the
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`substance -- what is the prejudice that you're suffering?
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`MS. COLGATE: Right. Your Honor, I understand. I
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`think the prejudice here is that for the past year, Rosetta has
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`been trying to evade the Federal Rules of Civil Procedure.
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`They're always trying to work around the rules and
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`come up with different, you know, solutions. Let's misjoinder,
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`sending LGE's counsel --
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`THE COURT: I read your memorandum. I asked you how
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`are you prejudiced?
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`MS. COLGATE: Sure. So the prejudice is the time and
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`the money that we have spent dealing with all of these
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`procedural issues over the last year. And in addition, as
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`pointed out in our memorandum, there are 35 new products that
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`have been added to the case, and there's time that has to be
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`spent researching those products.
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`THE COURT: Okay. So how much time do you need?
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`MS. COLGATE: I would have to consult with the client.
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`I mean, I think -- without consulting with the client, I guess
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`I can't answer.
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`MR. NG: Your Honor, if it makes it easier, we'd be
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`willing to agree to give them some extra time to respond at
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`this point, given where we stand right now. The additional
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`products -- all these products are, for purposes of
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`infringement, the same. LG just brought some new products to
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`market so we had an amendment.
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`THE COURT: So I will grant the motion for alternative
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`service and give you up to 90 days to, what, plead to the
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`complaint? Now, you should be doing this the right way. So I
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`hope that the plaintiff will learn a lesson from this.
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`Now, this case is really -- sounds like it could
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`really be very complicated. The patent has dozens of claims.
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`I don't know how many. And so is there any point in our having
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`early some kind of conference to try to streamline and maybe
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`even resolve this?
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`MR. NG: Your Honor, we have -- we've served our
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`infringement. We've reduced down the number of claims that are
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`being asserted on Apple. Functionally, we'd be happy to share
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`those. I don't know whether everybody has them or not.
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`

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`On the rest of the defendants, everyone knows where we
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`stand on infringement. I would assume that the -- the validity
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`or invalidity positions of the defendants are going to be
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`largely the same, if not identical so -- and we have those from
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`Apple. So I think that we have a better sense, I think, of
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`where we all stand.
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`THE COURT: Good.
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`MR. NG: We're always willing to talk. Obviously it
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`depends on, you know, whether everybody else is willing to do
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`so as well, but I think we have a clear picture of where things
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`stand. So there is a logic to it, if there's a willingness.
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`MR. FERGUSON: Your Honor, Brian Ferguson for Apple.
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`One issue that obviously can resolve the case, all of the cases
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`is the motion we filed on the pleadings.
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`It is Apple's position, I think all the defendants
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`agree, that these claims are not eligible for patentability
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`under Section 101 of the patent code and that motion will apply
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`against all the claims. So early resolution of the 101 motion
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`one way or the other will certainly help streamline the case.
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`THE COURT: Okay. So let me give that motion some
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`priority. And you have yet to work out a joint schedule on
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`discovery.
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`MR. NG: We've had some conversations but we can --
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`we've exchanged some schedules, so we can do that. We just --
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`I think there was disagreement about whether this was the right
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`forum to bring them up. If we have another few weeks, I'm sure
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`we can submit something.
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`THE COURT: So let's say 28 days scheduling
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`conference. That will be a little ambitious for a ruling on
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`your motion, but at least we'll get things rolling.
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`THE CLERK: That would be February 9th, 11:00 o'clock.
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`THE COURT: And consider the possibility of -- well,
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`maybe we'll talk about this after I rule on the motion on
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`patentability, and, you know, we may consider other options.
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`Okay.
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`MR. McCAULLEY: Your Honor, there's one more thing. I
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`just want to confirm it would be very helpful for us to know if
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`the same claims are being asserted against all the defendants.
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`MR. NG: Yes.
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`MR. McCAULLEY: Thank you. Thank you very much.
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`MR. NG: One more piece of housekeeping, your Honor.
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`We have an agreed or at least unopposed motion to amend our
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`complaint against Apple. It adds in some products and adds
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`willfulness. But it's been submitted on I don't know if it's
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`an unopposed or agreed basis, but we would just ask your Honor
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`to enter it.
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`THE COURT: I think I granted that one or will.
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`THE CLERK: 123.
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`MR. NG: I think that's right.
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`THE COURT: Okay.
`
`

`
` 13
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`MR. NG: Thank you, your Honor.
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`MR. FERGUSON: Thank you, your Honor.
`
`(Concluded at 11:55 a.m.)
`
`* * * * * * * * * *
`
`C E R T I F I C A T E
`
`I certify that the foregoing is a correct transcript of the
`
`record of proceedings in the above-entitled matter.
`
`/s/ LISA H. BREITER__________________
`LISA H. BREITER, CSR, RMR, CRR
`Official Court Reporter
`
`February 3, 2016
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