Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 1 of 21 PageID #: 1878
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`ALACRITECH, INC.,
`
`
`
`Plaintiff,
`
`Case No. 2:16-cv-693-JRG
`
`v.
`
`CENTURYLINK COMMUNICATIONS
`LLC, et al.
`
`
`Defendants.
`
`ALACRITECH, INC.,
`
`Plaintiff,
`
`v.
`
`WINSTRON CORPORATION, et al.,
`
`
`
`ALACRITECH, INC.,
`
`
`
`
`
`Defendants.
`
`LEAD CASE
`
`JURY TRIAL DEMANDED
`
`
`
`Case No. 2:16-cv-692-JRG
`
`JURY TRIAL DEMANDED
`
`MEMBER CASE
`
`
`
`Case No. 2:16-cv-695-JRG
`
`JURY TRIAL DEMANDED
`
`MEMBER CASE
`
`Plaintiff,
`
`Defendant.
`
`v.
`
`DELL INC.,
`
`
`
`
`PLAINTIFF ALACRITECH’S RESPONSE TO INTEL CORPORATION’S MOTION TO
`INTERVENE
`
`
`
`INTEL EX. 1417.001
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 2 of 21 PageID #: 1879
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`
`TABLE OF CONTENTS
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`Page
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`FACTUAL BACKGROUND ..............................................................................................2 
`A. 
`Alacritech’s Claims Have Been Pending Since June 2016 ......................................2 
`B. 
`Intel Has Been Aware Of This Litigation For Months ............................................2 
`C. 
`Negotiation, Briefing, and Judicial Decisions on Case-Governing Orders
`Has Taken Place That Should Not Be Interrupted By Intel’s Request To
`Intervene ..................................................................................................................3 
`Intel Delayed Filing Its Motion To Intervene ..........................................................4 
`D. 
`LEGAL STANDARD ..........................................................................................................5 
`ARGUMENT .......................................................................................................................6 
`A. 
`Intel’s Motion Is Untimely If It Will Disrupt The Existing Schedule .....................6 
`Intel Failed To Apply For Intervention As Soon As It Knew Of Its
`1. 
`Purported Interest In This Case ....................................................................6 
`The Circumstances Of Intel’s Intervention Demonstrate That It Is
`Untimely If It Executes Its Plan to Derail The Case ....................................9 
`Intel Is Not An Intervenor Of Right .......................................................................10 
`1. 
`Intel Does Not Have A Sufficient Interest In The Litigation .....................10 
`2. 
`Any Interest Intel May Have Is Already Adequately Protected ................12 
`Intel’s Permissive Intervention Is Appropriate As Long As Intel Can Show
`Its Intervention Will Not Prejudice Alacritech ......................................................13 
`CONCLUSION ..................................................................................................................15 
`
`2. 
`
`B. 
`
`C. 
`
`I. 
`
`II. 
`III. 
`
`IV. 
`
`
`
`
`i
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`INTEL EX. 1417.002
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 3 of 21 PageID #: 1880
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`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page
`
`Amicus, Inc. v. Post-Tension of Texas, Inc.,
`Civ. A. No. H-85-5849, 1986 WL 13012 (S.D. Tex. 1986) ....................................................12
`
`Bush v. Viterna,
`740 F.2d 350 (5th Cir. 1984) .............................................................................................12, 13
`
`Chandler & Price v. Brandtjen & Kluge,
`296 U.S. 53 (1935) ...................................................................................................................10
`
`Corely v. Jackson Police Dep't,
`755 F.2d 1207 (5th Cir. 1985) .......................................................................................1, 5, 6, 9
`
`Deus v. Allstate Ins. Co.,
`15 F.3d 506 (5th Cir. 1994) .....................................................................................................10
`
`Edwards v. City of Houston,
`78 F.3d 983 (5th Cir. 1996) (en banc) .......................................................................................5
`
`Frazier v. Map Oil Tools, Inc.,
`Civil Action No. C-10-4, 2010 WL 2352056 (S.D. Tex. 2010) ......................................7, 8, 13
`
`Honeywell Int'l, Inc. v. Audiovox Commc'ns Corp.,
`Civ. A. 04-1337-KAJ, 2005 WL 2465898 (D. Del. May 18, 2005) ....................................8, 11
`
`Intellectual Ventures I LLC v. AT&T Mobility LLC,
`C.A. No. 12-193-LPS, 2014 WL 4445953 (D. Del. Sept. 8, 2014) .........................................11
`
`Katz v. Lear Siegler, Inc.,
`909 F.2d 1459 (Fed. Cir. 1990)................................................................................................11
`
`Kneeland v. Nat'l Collegiate Athletic Ass'n,
`806 F.2d 1285 (5th Cir. 1987) ...................................................................................7, 9, 12, 13
`
`Peoples v. Aldine Indep. Sch. Dist.,
`2008 WL 2571900 (S.D. Tex. Jun. 19, 2008) ..........................................................................14
`
`Reid v. General Motors Corp.,
`240 F.R.D. 257 (E.D. Tex. 2006) ...............................................................................................8
`
`Ross v. Marshall,
`426 F.3d 745 (5th Cir. 2005) ...................................................................................................12
`
`Sierra Club v. Espy,
`18 F.3d 1202 (5th Cir. 1994) .....................................................................................................6
`
`Staley v. Harris Cnty.,
`223 F.R.D. 458 (S.D. Tex. 2004) ...............................................................................1, 2, 5, 6, 7
`
`
`
`ii
`
`INTEL EX. 1417.003
`
`

`

`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 4 of 21 PageID #: 1881
`
`
`Stallworth v. Monsanto Co.,
`558 F.2d 257, 264-66 (5th Cir. 1977) ....................................................................................5, 9
`
`Tegic Communications Corp. v. Board of Regents,
`296 U.S. 53 (1935); 458 F.3d 1335 (Fed. Cir. 2006) ...............................................................10
`
`TiVo, Inc. v. AT&T, Inc.,
`Civil Action No. 2:09-CV-259, 2010 WL 10922068 (E.D. Tex. Mar. 31, 2010) ...............8, 13
`
`TravelSource Corp. v. Old Republic Int’l,
`No. 85 C 8116, 1986 WL 3848 (N.D. Ill. Mar. 14, 1986) .........................................................8
`
`Statutes
`
`Fed. R. Civ. P. 24 .....................................................................................................1, 4, 5, 7, 10, 13
`
`Fed. R. Civ. P. 24(a) ..................................................................................................................5, 10
`
`Fed. R. Civ. P. 24(b) ............................................................................................................5, 13, 15
`
`Other Authorities
`
`A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1922 ........................................15
`
`
`
`
`
`iii
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`INTEL EX. 1417.004
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 5 of 21 PageID #: 1882
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`Alacritech does not oppose intervention by Intel so long as it is timely and non-
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`prejudicial – i.e., it does not undermine the existing orders and schedule already adopted by the
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`Court. But neither Rule 24 nor fundamental considerations of fairness permit a putative
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`intervenor to manipulate the timing of its intervention in order to disrupt or delay the case
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`schedule in a pending lawsuit to the detriment of the plaintiff. Indeed, the Fifth Circuit has
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`characterized the timeliness of a movant’s request to intervene as a “threshold” issue and denied
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`intervention when a movant’s delay threatened to derail the orderly progress of the litigation.1
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`Thus, as Alacritech told Intel, Alacritech does not oppose Intel’s intervention, so long as Intel
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`would agree to be bound by orders currently governing this case. Intel would have acceded to
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`this reasonable request if its interest in intervention were simply to protect its alleged financial
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`interest in the litigation. But Intel refused. As its Motion indicates, it wants to intervene and
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`attempt to re-do the case schedule and other orders governing the case. This is not allowed.
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`Intel cannot have it both ways: either intervention is timely and appropriate because it
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`will not disrupt the existing case schedule and other orders, or it is not timely and not appropriate
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`because it will. More simply, Intel should not be able to intervene and, through its intervention,
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`create the prejudice Rule 24 is designed to protect against, namely, the parties’ and Court’s
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`interests in the efficient, expeditious resolution of the issues in dispute.2 For this reason,
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`Alacritech respectfully requests that the Court condition Intel’s intervention on Intel’s agreement
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`to abide by the existing orders, including the Protective Order (Dkt. 75), Docket Control Order
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`(Dkt. 43), and Discovery Order (Dkt. 50), and not revisit briefing or otherwise seek to delay the
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`proceedings or undermine this Court’s authority.
`
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`1 Corely v. Jackson Police Dep’t, 755 F.2d 1207, 1209 (5th Cir. 1985).
`2 Staley v. Harris Cnty., 223 F.R.D. 458, 463 (S.D. Tex. 2004).
`
`
`
`1
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`INTEL EX. 1417.005
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 6 of 21 PageID #: 1883
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`
`I.
`
`FACTUAL BACKGROUND
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`A.
`
`Alacritech’s Claims Have Been Pending Since June 2016
`
`On June 30, 2016, Plaintiff Alacritech, Inc. (“Alacritech”) filed suit against several
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`providers of network server systems and services, such as end-to-end Data Centers and Cloud
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`solutions, that utilize Alacritech’s patented inventions without its permission. Among the
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`defendants accused of infringement is Dell Inc. (“Dell”). Alacritech’s Complaints against Dell
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`and the other defendants are each approximately a hundred (100) pages long. (Dkt. 1.) The
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`Complaints include detailed allegations regarding Alacritech’s claims, Defendants’ accused
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`products (including components manufactured by Intel3), and the manner in which Defendants’
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`practice the claimed inventions on an element-by-element basis certain, exemplary claims of
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`Alacritech’s patents. For example, the Dell Complaint identifies over fifty (50) specific Dell
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`products and categories of products that support and/or practice the infringing LSO, RSC,
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`InfiniBand, and/or RoCE functionality. (Id.)
`
`B.
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`Intel Has Been Aware Of This Litigation For Months
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`Shortly after being served, it appears that “Dell tendered a contractual claim that Intel
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`indemnify and hold it harmless against Alacritech’s claims based on an indemnity agreement
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`involving the purchase of Intel products.” (Mot. at 4.) Based thereon, Intel agreed to defend and
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`“partially indemnify” Dell. (Id. at 5 (citing Kyriacou Decl. ¶¶ 2-3).) Though Intel has refused to
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`indicate exactly when it agreed to defend Dell or the scope of its partial indemnification
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`commitment, Intel does not dispute that it has been aware of this case and participating in Dell’s
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`defenses since around the time the lawsuit was filed, four months ago. (Dkt. 71-3 at 2
`
`(10/21/2016 C. Stern email to G. Stephens); Ex. 1 (10/24/2016 J. Paunovich email to G.
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`Stephens and related string) (“We note that Intel does not dispute that it has known about this
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`3 One such identified component is Intel’s 82599 10GbE Controller. (E.g., id. ¶¶ 34, 35.)
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`
`
`2
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`INTEL EX. 1417.006
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 7 of 21 PageID #: 1884
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`case for nearly 4 months . . . .”).) Despite this awareness, Intel did not move to intervene until
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`October 31, 2016.
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`C.
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`Negotiation, Briefing, and Judicial Decisions on Case-Governing Orders Has
`Taken Place That Should Not Be Interrupted By Intel’s Request To
`Intervene
`
`As Intel acknowledges in its Motion, since inception of the litigation in June 2016, the
`
`parties have briefed several issues and the Court has entered several orders governing the scope
`
`and process of the litigation. For example, Dell answered the Complaint on August 25, 2016.
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`(Dkt. 27.) The Court held a Scheduling Conference on August 30, 2016. On September 9, 2016,
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`Alacritech served infringement contentions on all parties.
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`The parties filed their stipulated Docket Control Order on September 14 and it was
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`entered on September 15. (Dkt. 42, 43.) The parties filed their stipulated Discovery Order on
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`September 20 and it was entered on September 23. (Dkt. 45, 50.) Resolution of the procedural
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`and substantive issues presented in the Docket Control and Discovery Orders required extended
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`negotiations and effort by all eight (8) parties to the consolidated actions represented by six (6)
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`local and national law firms who signed the joint requests.
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`On September 27, 2016, following substantial negotiation, the parties filed a Joint
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`Motion for Adoption And Resolution Of Disputed Issues With Respect To Protective Order.
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`(Dkt. 55.) The majority of the provisions of the proposed Protective Order were agreed upon by
`
`all parties with the exception of two issues, which were briefed for the Court. (Dkt. 55 at 6.)
`
`The Court entered the stipulated Protective Order on November 8, 2016. (Dkt. 75.)4
`
`
`4 The Court entered the language proposed by Defendants limiting designation of Alacritech’s
`infringement contentions to “confidential information” that does not exclusively comprise “the
`parties’ legal theories of infringement and invalidity.” (Dkt. 75 at ¶ 6.) However, Intel had
`already agreed to provide indemnity to Dell in this matter based on Alacritech’s allegations in its
`Complaints against Defendants. As such, Intel cannot credibly claim that the designation of
`Alacritech’s infringement contentions delayed its intervention.
`
`
`
`3
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`INTEL EX. 1417.007
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 8 of 21 PageID #: 1885
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`D.
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`Intel Delayed Filing Its Motion To Intervene
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`Counsel for Intel spoke with Alacritech for the first time on October 13, 2016 to ask
`
`whether Alaritech would consent to Intel intervening in the matter against Dell. (Dkt. 71-3 at 6-
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`7 (10/13/2016 G. Stephens email to J. Paunovich).) Initially, Alacritech agreed not to oppose
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`Intel’s intervention as long as it complied with Rule 24’s requirement that intervention not
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`prejudice Alacritech or burden the Court. (Id. at 5-6 (10/14/2016 C. Stern email to G.
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`Stephens).) For example, Alacritech asked that Intel move expeditiously, maintain the existing
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`Docket Control Order, and not take action to undermine the previously-entered orders or the
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`expeditious resolution of the litigation as a whole. (Id.; see also id. at 10/21/2016 C. Stern
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`email.) Intel indicated that it did not have any problem with the Discovery Order or E-Discovery
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`Order, but implied that it would object to the existing case schedule unless Alacritech agreed to
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`forgo its right to bring counterclaims against Intel that “change the scope of the case.” (Id. at 2-
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`3.) Intel further indicated its intent to challenge the previously-agreed upon provisions of the
`
`Protective Order and demand special provisions for Intel. (Id.)
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`Unwilling to give up its right (and potentially its obligation) to counterclaim against Intel
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`or to resurrect the previously negotiated case schedule and briefed issues, Alacritech nonetheless
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`urged Intel to move to intervene promptly in a manner that would not “change the case
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`schedule/deadlines or require the Court and Alacritech to revisit and rebrief issues.” (Id. at 1-2
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`(10/21/2016 C. Stern email to G. Stephens); see also Ex. 1 (10/24/2016 email from J. Paunovich
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`to G. Stephens).) On October 21, Intel sent a final email stating its refusal to reach an agreement
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`on the appropriate schedule or conditions of Intel’s intervention. (Id. at 1 (10/21/2016 G.
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`Stephens email to C. Stern.) Intel then waited another week before filing the present motion to
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`intervene. (Dkt. 71 (filed 10/31/2016).)
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`
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`4
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`INTEL EX. 1417.008
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 9 of 21 PageID #: 1886
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`II.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 24 provides in relevant part that a party is entitled to
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`intervene by right where it “claims an interest relating to the property or transaction that is the
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`subject of the action, and is so situated that disposing of the action may as a practical matter
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`impair or impede the movant’s ability to protect its interest, unless existing parties adequately
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`represent that interest.” A Court also may permit a party to intervene on timely motion where it
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`“has a claim or defense that shares with the main action a common question of law or fact.” (Id.)
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`However, “[i]n exercising its discretion, the court must consider whether the intervention will
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`unduly delay or prejudice the adjudication of the original parties’ rights.” (Id.)
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`“The threshold consideration of any motion to intervene is timeliness.” Corley v.
`
`Jackson Police Department, 755 F.2d 1207, 1209 (5th Cir. 1985). “The law governing Rule
`
`24(a)(2) and (b) emphasizes the importance of timeliness as an indispensable factor.” Staley v.
`
`Harris County, 223 F.R.D. 458, 461 (S.D. Tex. 2004) (emphasis added). “If an applicant for
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`intervention cannot satisfy the timeliness factor, the court need not address the Rule’s other
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`requirements” and should simply reject the request for intervention. Id. (citing Edwards v. City
`
`of Houston, 78 F.3d 983, 999 (5th Cir. 1996) (en banc)).
`
`In Stallworth v. Monsanto Co., the Fifth Circuit “distilled four factors to be weighed in
`
`determining whether a motion to intervene,” under either Rule 24(a) or (b) is timely:
`
`Factor 1. The length of time during which the would be intervenor actually knew
`or reasonably should have known of his interest in the case before he petitioned
`for leave to intervene . . .
`
`Factor 2. The extent of the prejudice that the existing parties to the litigation may
`suffer as a result of the would-be intervenor’s failure to apply for intervention as
`soon as he actually knew or reasonably should have known of his interest in the
`case . . . .
`
`Factor 3. The extent of the prejudice that the would-be intervenor may suffer if
`his petition for leave to intervene is denied . . . .
`
`
`
`5
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`INTEL EX. 1417.009
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 10 of 21 PageID #: 1887
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`Factor 4. The existence of unusual circumstances militating either for or against a
`determination that the application is timely.
`
`Corley, 755 F.2d at 1209 (quoting Stallworth, 558 F.2d 257, 264-66 (5th Cir. 1977)). The sum
`
`of the factors underscores that to be timely, the would-be intervenor must file its motion as soon
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`as it becomes aware “that it ha[s] some stake in the action” and, further, that any delay that
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`causes prejudice is a basis for denying the request. Staley, 223 F.R.D. at 462 (citing Sierra Club
`
`v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994)).
`
`III. ARGUMENT
`
`A.
`
`Intel’s Motion Is Untimely If It Will Disrupt The Existing Schedule
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`As a predicate matter, Intel acknowledges in its Motion that it did not immediately move
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`to intervene when it realized that certain of its products were components in Defendants’ accused
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`products – a fact evident from the face of Alacritech’s Complaints. Thus, having intentionally
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`delayed filing it motion, Intel can only meet the requirement of “timeliness” if it proves that
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`intervention will not result in prejudice to the existing parties to the litigation.
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`1.
`
`Intel Failed To Apply For Intervention As Soon As It Knew Of Its
`Purported Interest In This Case
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`In its Motion, Intel does not genuinely dispute that it delayed filing its Motion. Corley,
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`755 F.2d at 1209 (holding that failure to promptly move to intervene eradicates the would-be
`
`intervenor’s rights when the delay would cause prejudice to the existing parties and litigation ).
`
`Intel expressly states that it was aware of Alacritech’s Complaints, filed on June 30, 2016 (Mot.
`
`at 3), that the Complaints “identify Intel products” as being part of the accused systems (Mot. at
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`3-4), and that based on the allegations of the Complaint against Dell, “Intel . . . agreed to defend
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`and partially indemnify Dell.” (Mot at 5). Thus, all of the information upon which Intel now
`
`bases its assertion that it “has a compelling interest in the litigation,” including that the “accused
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`products incorporate components manufactured” by Intel (Mot. at 7) were known to it in or
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`
`
`6
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`INTEL EX. 1417.010
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 11 of 21 PageID #: 1888
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`around June 2016, four months before it filed this motion. During the parties’ correspondence,
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`Intel acknowledged as much, but provided no justification for its delays in either moving to
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`intervene or seeking Alacritech’s stipulation to its intervention. See Dkt. 71-3 at 2 (10/21/2016
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`C. Stern email to G. Stephens); Ex. 1 (10/24/2016 J. Paunovich email to G. Stephens). Having
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`intentionally delayed filing its Motion, Intel’s request cannot be granted unless it proves that
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`intervention will not prejudice the existing parties or the sanctity of the proceedings. Compare
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`Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir. 1987) (finding motion
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`to intervene filed four months after the lawsuit was removed from state court to be untimely
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`where it would cause prejudice); Frazier v. Map Oil Tools, Inc., Civil Action No. C-10-4, 2010
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`WL 2352056, at *5 (S.D. Tex. 2010) (denying motion for intervention filed four (4) months after
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`the action was initiated because it would cause prejudice).
`
`In its Motion, Intel perfunctorily asserts that its delay should not foreclose intervention
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`because Intel seeks “to intervene at an early stage of the litigation.” (Mot. at 6.) That the stage
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`of the litigation is relatively early, does not excuse Intel’s failure to move expeditiously. Staley,
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`223 F.R.D, at 462-63 (“If Star of Hope was genuinely concerned about protecting its rights in
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`this litigation, it could and should have filed a motion for leave to intervene long ago . . . .
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`Neither the Federal Rules of Civil Procedure nor the law of equity rewards those who slumber on
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`their rights . . . .”). Rather, Rule 24 adjudges timeliness based on the impact that the movant’s
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`delay in intervening will have on the litigation.5 Id . To the extent that Intel insists on
`
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`5 Intel’s cited cases (Mot. n.10) are in accord. They all stand for the general proposition that a
`motion to intervene must be denied if the movant’s delay in filing threatens to disrupt the
`proceedings or prejudice the existing parties. See Ross v. Marshall, 426 F.3d 745, 755 (5th Cir.
`2005) (courts must consider “the prejudice caused by the applicants’ delay”); Chiles v.
`Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989) (motion to intervene was timely when filed
`“before discovery had begun” and would not cause prejudice to existing parties); Alabama v.
`U.S. Army Corps of Eng’rs, 229 F.R.D. 669, 672 (N.D. Ala. 2005) (“The court has not yet
`conducted proceedings on the merits of the case, and the movants’ intervention will not delay the
`
`
`
`7
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`INTEL EX. 1417.011
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 12 of 21 PageID #: 1889
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`challenging previously agreed upon or decided issues, including the case schedule, its position
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`fundamentally controverts a finding that for the purpose of intervention, this case is at “an early
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`stage” or that Intel’s motion is timely.
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`Indeed, as compared to the cases Intel itself cites, Intel’s delayed motion is quite tardy.
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`For example, in TravelSource Corp. v. Old Republic Int’l (cited in Mot. at 7 n.10), the Court
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`found the motion to intervene timely because it was made before any pleadings other than the
`
`Complaint and Answer had been filed. No. 85 C 8116, 1986 WL 3848, at *2 (N.D. Ill. Mar. 14,
`
`1986). Similarly, in Reid v. General Motors Corp. (cited in Mot. at 13), the Court found
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`Microsoft’s motion timely because it would not adversely affect the scheduling order (since one
`
`had not been entered after the case was transferred). 240 F.R.D. 257, 260 (E.D. Tex. 2006); see
`
`also Tivo Inc. v. AT&T, No. 2:09-cv-259, 2010 WL 10922068, at *4 (E.D. Tex. Mar. 31, 2010)
`
`(finding movant’s request timely because no scheduling conference had been held or scheduling
`
`order entered). And in Honeywell Int’l, Inc. v. Audiovox Communications Corp., the intervenors
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`moved before any discovery had begun and when “case management issues” were still “being
`
`addressed.” Civ. A. 04-1337-KAJ, 2005 WL 2465898, at *4 (D. Del. May 18, 2005).
`
`Here, what has occurred in the amount of time that has passed is neither “minimal” nor
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`“inconsequential.” The initial case management conference has been conducted. See Frazier,
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`2010 WL 2352056, at *5. A schedule, negotiated and agreed upon by the parties, has been
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`entered by the Court. Discovery and Protective Orders have also been entered and discovery is
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`underway. See Section I.C. supra. In addition, Alacritech has already served its infringement
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`contentions. Id. Intel’s delay in moving to intervene poses an unfair and improper risk of
`
`
`proceedings.”); Travelsource Corp. v. Old Republic Int’l Corp., No. 85 C 8116, 1986 WL 3848,
`at *2 (N.D. Ill. Mar. 14, 1986) (although motion to intervene was filed six months after the
`litigation was initiated, no pleadings had been filed other than the complaint an answer).
`
`
`
`8
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`INTEL EX. 1417.012
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 13 of 21 PageID #: 1890
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`undoing the progress Alacritech has already made toward the prompt adjudication of its rights.
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`Thus, the first factor in the “indispensable” test for timeliness weighs against Intel’s motion if
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`Intel carries out its plan to revisit the case schedule, briefing and other orders entered by the
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`Court, or otherwise seek to delay the proceedings.
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`2.
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`The Circumstances Of Intel’s Intervention Demonstrate That It Is
`Untimely If It Executes Its Plan to Derail The Case
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`The remaining factors are not intended to undermine the Court’s analysis of Factor 1
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`(the length of delay), but instead calibrate the Court’s consideration of timeliness based on the
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`relative prejudice caused by the putative intervenor’s delay in seeking intervention (Factors 2 &
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`3) as well as the circumstances and the intervenor’s control thereof that “occasioned or
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`contributed to the . . . delay” (Factor 4). Corley, 755 F.2d at 1210; see also Stallworth, 558 F.2d
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`at 266. Intel has not identified any “unusual circumstances mitigating its delay” nor does Intel
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`argue that the timing of its request for intervention was outside its control. Kneeland, 806 F.2d
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`at 1289; see also Corley, 755 F.2d at 1210 (intervention denied when delay put at risk the
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`efficacy of previous agreements and orders). Rather, Intel’s “ample notice of its interest in the
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`lawsuit” and its waiting for months to seek to intervene would, at the very least, waste the
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`parties’ and judicial resources if forced to revisit previous agreements and orders governing the
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`case—all of which were negotiated and ruled upon during Intel’s delay in seeking to intervene.
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`Kneeland, 806 F.2d at 1289. In these circumstances, courts have held that the prejudice to the
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`existing parties is readily “apparent.” Id.; see also Corley, 755 F.2d at 1210.
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`At most, Intel suggests that if Alacritech had “allow[ed] Intel or its outside counsel
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`access to Alacritech’s September 9, 2016 infringement contentions” then “Intel could have
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`moved to intervene earlier.” (Mot. at 6-7.) Intel provides no explanation for why it required
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`access to Alacritech’s designated material in order to make its motion. The Complaint includes
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`9
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`INTEL EX. 1417.013
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`

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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 14 of 21 PageID #: 1891
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`element-by-element infringement allegations, including substantially more detail than required
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`by the law and enough that Intel apparently decided months ago to indemnify Dell. Compare
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`Mot. at 5. Intel made clear in correspondence with Alacritech about its intervention that it had
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`already agreed to indemnify Dell and its desire to intervene was not contingent on receipt of
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`Alacritech’s contentions. (Dkt. 71-3 at 2-3 (10/20/2016 G. Stephens email to J. Paunovich).)
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`Nor does Intel cite to any case law (and Alacritech is not aware of any) that supports the
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`proposition that an intervenor may wait until it gets access to designated material before bringing
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`its motion. To the contrary, the Fifth Circuit has rejected access to designated material as a
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`consideration in evaluating the appropriateness of intervention. Deus, 15 F.3d at 525.
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`Factors 2-4 underscore the importance of foreclosing Intel’s use of its motion as a means
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`of derailing this litigation – e.g., by re-litigating previously-briefed or decided issues or
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`otherwise undermining the case schedule. Using the barometer provided by well-established
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`Fifth Circuit law, Intel’s motion is either timely and Intel is bound by the case schedule and
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`orders in place, or it is unfairly prejudicial and untimely.
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`B.
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`Intel Is Not An Intervenor Of Right
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`1.
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`Intel Does Not Have A Sufficient Interest In The Litigation
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`In addition to potentially being untimely, Intel’s argument that it is entitled to intervene
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`as a matter of right is incorrect and unsupported by the legal authority in its Motion. Despite
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`broadly asserting that “Courts routinely grant intervention as of right in patent actions where, as
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`here, accused products incorporate components manufactured by the intervening party” (Mot. at
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`7), Intel does not cite a single case from this Court or that is binding on this Court that grants
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`intervention in these circumstances pursuant to Rule 24(a). (Compare Mot. at 7-9.) Neither
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`Chandler & Price v. Brandtjen & Kluge, which is a Supreme Court case that predates the
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`adoption of Rule 24, nor Tegic Communications Corp. v. Board of Regents, which does not
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`10
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`INTEL EX. 1417.014
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`Case 2:16-cv-00693-JRG-RSP Document 82 Filed 11/17/16 Page 15 of 21 PageID #: 1892
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`address a motion to intervene at all, discuss much less support a finding that Intel, as the
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`manufacturer of a component in some of the complex accused systems at issue in this litigation,
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`has a right to intervene. 296 U.S. 53 (1935); 458 F.3d 1335 (Fed. Cir. 2006).
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`The cited extra-jurisdictional authority is readily distinguishable. (Mot. at 7-9). In both
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`Honeywell and Intellectual Ventures, Intel contends supports its position, the intervenors’
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`products were themselves accused of infringement – whereas here Alacritech has accused
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`Defendants’ server systems, which Intel does not manufacture, assemble, or sell. Cf. Honeywell
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`Int’l, Inc. v. Audiovox Commc’ns Corp., Civ. A. 04-1337-KAJ, 2005 WL 2465898, at *3 (D. Del.
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`May 18, 2005) (intervention appropriate because “liability depends exclusively upon
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`infringement being found as to an LCD component that the defendants do not manufacture and . .
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`. some of the manufacturers of the LCDs are before the court and are willing to stand behind
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`their products in this litigation”) (emphasis added); Intellectual Ventures I LLC v. AT&T Mobility
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`LLC, C.A. No. 12-193-LPS, 2014 WL 4445953, at *2 (D. Del. Sept. 8, 2014) (intervenors
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`“manufacture products for AT&T and Nextel that IV I claims infringe four of IV’s patents”).6
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`This distinction is particularly salient because, as noted by the Delaware court in
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`Honeywell, the “fairest and most efficient way to proceed” with litigation is to focus on the
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`provider of the mainstay of the accused products or systems – and not to unnecessarily
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`complicate the action by including disparate defendants “with many different accused devices”
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`or only an attenuated interest in the proceedings. 2005 WL 2465898 at *3. Here, unlike in
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`Honeywell, it is the existing defendants who are uniquely situated to understand and defend their
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`6 The remainder of Intel’s authority is simila