Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 1 of 21 PageID #: 6564
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`ALACRITECH, INC.,
`
`
`
`Plaintiff,
`
`Case No. 2:16-cv-693-JRG-RSP
`
`v.
`
`LEAD CASE
`
`CENTURYLINK COMMUNICATIONS
`LLC, et al.
`
`
`Defendants.
`
`JURY TRIAL DEMANDED
`
`ALACRITECH, INC.,
`
`Plaintiff,
`
`v.
`
`
`
`Case No. 2:16-cv-692-JRG-RSP
`
`JURY TRIAL DEMANDED
`
`MEMBER CASE
`
`
`
`Case No. 2:16-cv-695-RWS-RSP
`
`JURY TRIAL DEMANDED
`
`MEMBER CASE
`
`WISTRON CORPORATION, et al.,
`
`
`
`ALACRITECH, INC.,
`
`
`
`Defendants.
`
`
`
`v.
`
`DELL INC.,
`
`
`Plaintiff,
`
`Defendant,
`
`INTEL CORPORATION AND CAVIUM.
`INC.,
`
`Intervenors.
`
`PLAINTIFF ALACRITECH INC.’S RESPONSE TO INTEL CORPORATION’S
`MOTIONS TO INTERVENE IN ALACRITECH INC. V. CENTURYLINK, INC., CASE
`NO. 2:16-CV-693 AND ALACRITECH INC. V. WISTRON CORP., CASE NO. 2:16-CV-
`692
`
`
`
`
`
`INTEL EX. 1418.001
`
`

`

`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 2 of 21 PageID #: 6565
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`TABLE OF CONTENTS
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`Page
`
`I.
`
`FACTUAL BACKGROUND ..............................................................................................2
`
`A.
`
`B.
`
`C.
`
`Alacritech’s Claims Have Been Pending Since June 2016 ......................................2
`
`Substantial Litigation Has Already Taken Place In The Consolidated
`Cases ........................................................................................................................2
`
`Intel Filed Its Motion to Intervene in the Dell Case Only After An
`Unjustified Delay, and the Instant Motions Five Months After That ......................3
`
`LEGAL STANDARD ..........................................................................................................4
`
`ARGUMENT .......................................................................................................................5
`
`A.
`
`Intel’s Motions Should Be Denied As Untimely. ....................................................6
`
`1.
`
`2.
`
`Intel’s Motion to Intervene Is Untimely ......................................................6
`
`The Balance of Prejudice Weighs Against Intervention ..............................8
`
`B.
`
`Intel Is Not An Intervenor By Right ......................................................................10
`
`1.
`
`2.
`
`Intel Does Not Have A Sufficient Interest In The Cases To Make It
`An Intervenor By Right .............................................................................10
`
`Intel’s Interests Are Adequately Protected ................................................12
`
`C.
`
`Permissive Intervention Is Unwarranted Because The Prejudice It Would
`Cause Far Outweighs The Theoretical Benefits Intel Seeks ..................................14
`
`CONCLUSION ..................................................................................................................15
`
`II.
`
`III.
`
`IV.
`
`
`
`
`i
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`INTEL EX. 1418.002
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`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 3 of 21 PageID #: 6566
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Page
`
`Bush v. Viterna,
`740 F.2d 350 (5th Cir. 1984) ...................................................................................................13
`
`Chandler & Price v. Brandtjen & Kluge
`296 U.S. 53 (1935) ...................................................................................................................13
`
`Corley v. Jackson Police Department,
`755 F.2d 1207 (5th Cir. 1985) ...............................................................................................4, 5
`
`Frazier v. Map Oil Tools, Inc.,
`2010 WL 2352056 (S.D. Tex. Jun. 10, 2010) ..........................................................................14
`
`Honeywell Int'l, Inc. v. Audiovox Commc'ns Corp.,
`2005 WL 2465898 (D. Del. May 18, 2005) .......................................................................11, 12
`
`Intellectual Ventures I LLC v. AT&T Mobility LLC,
`No. 12-193, 2014 WL 4445953 (D. Del. Sept. 8, 2014) ..........................................................11
`
`Katz v. Lear Siegler
`909 F.2d 1459 (Fed. Cir. 1990)................................................................................................11
`
`Kneeland v. Nat'l Collegiate Athletic Ass'n,
`806 F.2d 1285 (5th Cir. 1987) ...........................................................................................13, 14
`
`Ross v. Marshall,
`426 F.3d 745 (5th Cir. 2005) ...............................................................................................6, 13
`
`Staley v. Harris County, Tex.,
`223 F.R.D. 458 (S.D. Tex. 2004) ...........................................................................................4, 5
`
`Stallworth v. Monsanto Co.,
`558 F.2d 257 (5th Cir. 1977) .................................................................................................5, 6
`
`SynQor, Inc. v. Artesyn Techs., Inc.,
`No. 11-444, 2013 WL 12133693 (E.D. Tex. May 28, 2013) ...................................................11
`
`Tegic Communications Corp. v. Board of Regents
`458 F.3d 1335 (Fed. Cir. 2006)................................................................................................11
`
`Statutes
`
`Fed. R. Civ. P. 24(a)(2) ................................................................................................................4, 5
`
`Fed. R. Civ. P. 24(b) ..................................................................................................................5, 14
`
`Fed. R. Civ. P. 24(b)(1)(B) ..............................................................................................................4
`
`
`
`ii
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`INTEL EX. 1418.003
`
`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 4 of 21 PageID #: 6567
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`Fed. R. Civ. P. 24(b)(3)....................................................................................................................4
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`Fed. R. Civ. P. 30(b)(6)....................................................................................................................3
`
`Local Rule CV-5(a)........................................................................................................................17
`
`Local Rule CV-5(a)(3)(A) .............................................................................................................17
`
`
`
`
`
`iii
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`INTEL EX. 1418.004
`
`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 5 of 21 PageID #: 6568
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`Intel Corporation’s (“Intel’s”) motions to intervene in Alacritech Inc. v. Century Link,
`
`Inc., Case No. 2:16-CV-693 (Dkt. 150) and Alacritech, Inc. v. Wistron Corp., Case No. 2:16-CV-
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`692 (Dkt. 151) come nearly nine months after this litigation was initiated on June 30, 2016, and
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`close to five months after Intel moved to intervene in the related case against Dell (Dkt. 71) on
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`October 31, 2016. The claims and issues Intel argues now give it a substantial interest in the
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`separate suits against Tier 3, Inc., Savvis Communications Corp., CenturyLink Communications
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`LLC, and CenturyLink, Inc., (collectively “CenturyLink”) and Wistron Corporation, Wiwynn
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`Corporation, and SMS Infocomm Corporation, (collectively “Wistron”), and which Intel argues
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`entitle it to intervene in these suits by right, have been known to Intel since on or around the
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`inception of the litigation nearly a year ago. Moreover, Intel told Alacritech that it would “be
`
`moving to intervene in the CenturyLink and Wistron cases” over two months ago on January 23,
`
`2017. Ex. A. Yet Intel waited until the end of March, just a few weeks from the deadlines for
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`substantial completion of document production and opening claim construction briefs and
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`approximately three months prior to the close of fact discovery. Intel offers no cognizable
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`justification for delays and failure to move months earlier. For example, Intel has not pointed to
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`any intervening event that has occurred in the months since Intel intervened in the Dell case that
`
`would have triggered its subsequent motions or justified its tardy request. Intel’s failure to move
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`to intervene in a timely fashion is dispositive against its Motions regardless of what section of
`
`Rule 24 applies.
`
`Moreover, for all the reasons set forth herein Intel is not an intervenor by right nor would
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`its permissive intervention provide any benefit to the fair and expeditious adjudication of the
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`CenturyLink and Wistron cases. Intel is not an intervenor by right for many reasons including
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`because it has not provided a single shred of evidence supporting its purported interests in the
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`litigation against CenturyLink (who is not a customer of Intel) or Wistron (for whom Intel has
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`not provided any indemnification agreement supporting its claimed interest). Intel has also failed
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`to show any adversity between itself and the defendants that would render the current
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`representation inadequate. Intel should not be allowed to be a permissive intervenor either. It
`
`
`
`1
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`INTEL EX. 1418.005
`
`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 6 of 21 PageID #: 6569
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`has not demonstrated any reason why its intervention would do anything other than give Intel
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`another platform to delay the adjudication of Alacritech’s claims. Indeed, the only concrete
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`reasons Intel has articulated for moving to intervene are so that it can influence the Judge who
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`will preside over the cases and the order in which they are tried. (Dkt. 150 at 2-3.) Intel’s forum
`
`shopping is not a legitimate basis for intervention. Intel’s Motions should be denied.
`
`I.
`
`FACTUAL BACKGROUND
`
`A.
`
`Alacritech’s Claims Have Been Pending Since June 2016
`
`On June 30, 2016, Alacritech filed suit against several providers of network server
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`systems and services, such as end-to-end Data Centers and Cloud solutions, that utilize
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`Alacritech’s patented inventions without its permission. Among the defendants accused of
`
`infringement are Dell, Wistron, and CenturyLink (collectively “Defendants”).1 Alacritech’s
`
`Complaints include detailed allegations regarding Alacritech’s infringement theories and
`
`Defendants’ accused products and services (some of which include components manufactured by
`
`Intel, which were expressly identified in the Complaint). For example, the Wistron Complaint,
`
`identifies fifteen (15) Wistron products that practice the accused functionalities and specifically
`
`identifies at least two exemplary Intel components that are used by Wistron’s accused server
`
`systems. The CenturyLink Complaint, as amended on August 26, 2016, also identifies at least
`
`one exemplary Intel component that is used by CenturyLink in connection with its accused
`
`services. Both of these complaints were filed publicly nearly nine months ago, and by Intel’s
`
`own admission it has had access to both Alacritech’s Complaints and infringement contentions
`
`since at least November 2016. (Dkt. 150 at 4.)
`
`B.
`
`Substantial Litigation Has Already Taken Place In The Consolidated Cases
`
`Since inception of the litigation, the parties have briefed several issues and the Court has
`
`entered several orders governing the scope and process of the litigation. The Court held a
`
`Scheduling Conference on August 30, 2016. (Dkt. 30.) On September 9, 2016, Alacritech served
`
`
`1 Alacritech accused CenturyLink, Inc. in its June 30, 2016 Complaint (Dkt. 1), and filed an
`amended complaint to include all of the CenturyLink Defendants on August 26, 2016. (Dkt. 29.)
`
`
`
`2
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`INTEL EX. 1418.006
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`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 7 of 21 PageID #: 6570
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`infringement contentions on all parties. On September 23, 2016, the Court issued a discovery
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`order, (Dkt. 50), and on September 28, 2016, the Court issued an e-discovery order. (Dkt. 58.)
`
`Intel moved to intervene in the Dell case on October 31, 2016, (Dkt. 71), and was granted its
`
`motion on November 21, 2016. (Dkt. 84.) On November 22, 2016, Intel filed its intervenor
`
`complaint, (Dkt. 85), which Alacritech answered (with counterclaims) on December 13, 2016.
`
`(Dkt. 95.) Two months later, Intel filed counterclaims in reply and Alacritech responded on
`
`February 23, 2017. (Dkt. 120, Dkt. 136.)
`
`Discovery is likewise well under way. Alacritech served its Fed. R. Civ. P. 30(b)(6)
`
`Notice of Deposition on Intel on February 9, 2017. To date, Intel has failed to designate
`
`witnesses to testify on Alacritech’s Rule 30(b)(6) topics or propose a schedule for the
`
`deposition(s), despite Alacritech’s repeated requests that it do so. See, e.g., Ex. B. The deadline
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`for substantial completion of document production is less than a week away, and the close of fact
`
`discovery is on June 23, 2017, meaning that the parties have only a matter of weeks before they
`
`must serve any final discovery requests (in order to leave the responding party adequate time to
`
`respond prior to the deadline). (Dkt. 56.) The parties have also completed claim construction
`
`discovery, including depositions of both sides’ experts. All initial exchanges required by P.R. 4
`
`have been completed and Alacritech’s opening claim construction brief is due less than a week
`
`from now.
`
`C.
`
`Intel Filed Its Motion to Intervene in the Dell Case Only After An Unjustified
`Delay, and the Instant Motions Five Months After That
`
`As set forth more fully in Alacritech’s response to Intel’s first motion to intervene (Dkt.
`
`82), Intel first raised its possible intervention in the litigation in mid-2016. It moved to intervene
`
`in the Dell litigation only on October 31, 2016. The Court granted Intel’s motion on November
`
`21, 2016. (Dkt. 84.) Two months after Intel intervened in the Dell case, on January 23, 2017,
`
`Intel first suggested to Alacritech that it would also “be moving to intervene in the Centurylink
`
`and Wistron cases.” Ex. A. At that time, Intel would neither commit to maintaining the existing
`
`
`
`3
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`INTEL EX. 1418.007
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`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 8 of 21 PageID #: 6571
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`orders and schedule nor would it identify the specific modifications it believed would be
`
`necessary as a result of its intervention. Absent any assurance that Intel would not use its
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`intervention into the CenturyLink and Wistron cases to attempt to inject further delays in the
`
`case schedule, Alacritech stated it would oppose the motion. Intel then waited for another two
`
`months before filing its motions to intervene on March 14, 2017, five months after it intervened
`
`in the Dell case, less than a month before the deadline for substantial completion of document
`
`production and claim construction briefing (which are now less than a week away), and
`
`approximately three months prior to the close of fact discovery on June 23, 2017. (Dkt. 56.) In
`
`its Motions, Intel continues to suggest (Dkt. 150 at 3 n.1.) that it may use any resulting
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`intervention to undermine the Docket Control Order and other orders in the litigation.
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`II.
`
`LEGAL STANDARD
`
`Federal Rule of Civil Procedure 24 provides in relevant part that a party is entitled to
`
`intervene by right where it “claims an interest relating to the property or transaction that is the
`
`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
`
`represent that interest.” Fed. R. Civ. P. 24(a)(2). A Court also may permit a party to intervene
`
`on timely motion where it “has a claim or defense that shares with the main action a common
`
`question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). However, “[i]n exercising its discretion,
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`the court must consider whether the intervention will unduly delay or prejudice the adjudication
`
`of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
`
`“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 Rules
`
`24(a)(2) and 24(b) emphasizes the importance of timeliness as an indispensable factor.” Staley
`
`v. Harris County, Tex., 223 F.R.D. 458, 461 (S.D. Tex. 2004) (emphasis added). “If an applicant
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`for intervention cannot satisfy the timeliness factor, the court need not address the Rules’ other
`
`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)).
`
`
`
`4
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`INTEL EX. 1418.008
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`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 9 of 21 PageID #: 6572
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`In Stallworth v. Monsanto Co., the Fifth Circuit “distilled four factors to be weighed in
`
`determining whether a motion to intervene,” Corley, 755 F.2d at 1209, 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 . . . .
`
`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 at 264-66). The sum of the factors
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`underscores that to be timely, the would-be intervenor must file its motion as soon as it becomes
`
`aware “that it ha[s] some stake in the action” and, further, that any delay that causes prejudice is
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`a basis for denying the request. Staley, 223 F.R.D. at 462 (citing Sierra Club v. Espy, 18 F.3d
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`1202, 1206 (5th Cir. 1994)).
`
`III. ARGUMENT
`
`There is no dispute that Intel has been aware of the pending litigation since its inception
`
`nine months ago (and has had access to Alacritech’s infringement contentions for nearly five
`
`months) or that it has been aware of its alleged interest for a commensurate amount of time.
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`Intel has offered no legitimate justification for its failure to move promptly, upon identification
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`of its purported interest in the litigation, and its motions are therefore untimely. Moreover, Intel
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`is not entitled to intervene as a matter of right because, despite its conclusory claims otherwise,
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`Intel’s interests in these cases fall short of the requirements of Federal Rule of Civil Procedure
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`24(a). Finally, Intel is not entitled even to permissive intervention, as any benefits Intel might
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`accrue by intervening would be far outweighed by the prejudice Alacritech would suffer. More
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`
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`5
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`INTEL EX. 1418.009
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`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 10 of 21 PageID #: 6573
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`generally, intervention at this stage of the case would result in substantial delays to the forward
`
`progress of this litigation, an impact sure to be felt by all parties as well as the Court.
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`A.
`
`Intel’s Motions Should Be Denied As Untimely.
`
`As Intel acknowledges, the moving party bears the burden of proving that its motion is
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`timely as a predicate to intervention pursuant to Rule 24. The courts balance four factors in
`
`determining the timeliness of a motion, including: (1) the length of time from notice of the
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`intervenor’s interest to the filing of the motion to intervene, (2) the extent of prejudice to existing
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`parties as a result of the timing of the motion, (3) the extent of prejudice to the intervenor if leave
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`is denied, and (4) the existence of other special circumstances (if any). See Ross v. Marshall,
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`426 F.3d 745, 754 (citing Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977)). As
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`articulated by these factors, the assessment of timeliness is adjudged based on the length of time
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`that elapsed between a putative intervenor’s awareness of its interest and its motion and the
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`intervenor must demonstrate that the timing of its intervention would not prejudice the existing
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`parties or the Court.
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`1.
`
`Intel’s Motion to Intervene Is Untimely
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`Intel’s motion all but ignores the first and primary factor in assessing the timeliness of its
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`motions – i.e., how long the would-be intervenor has been on notice of its alleged interests in the
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`pending litigation. Intel has long been aware of the very facts and claims that it now argues
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`weigh in favor of its intervention – whether Intel learned about its alleged interests from the
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`Complaints Alacritech filed against Wistron and CenturyLink, which expressly mention multiple
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`Intel components, through the infringement contentions it received a couple of months later, or
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`through Intel’s direct participation in the Dell litigation (which has been related for pretrial
`
`purposes with the CenturyLink and Wistron Cases), the indelible fact is that Intel has known the
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`facts upon which its motion rests for many months, but failed to request intervention.
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`In fact, Intel initially raised its potential intervention in the CenturyLink and Wistron
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`cases more than two months ago, on January 23, 2017. Ex. A. The parties promptly met and
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`
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`6
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`INTEL EX. 1418.010
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`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 11 of 21 PageID #: 6574
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`conferred in good faith and, based thereon, Alacritech was under the impression that Intel was
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`going to move, if at all, at that time. It did not. Instead, Intel waited for two more months before
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`filing and has articulated no rationale for its delay. Additionally, Alacritech asked Intel to
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`identify any specific changes to the docket control or other orders it believes would be necessary
`
`as a result of its intervention in the Wistron and CenturyLink cases. To the best of Alacritech’s
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`understanding, Intel never followed-up or articulated any proposed changes (in correspondence
`
`or in its pending motions). Despite understanding that the impact it will have on the expeditious
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`resolution of the litigation is a fundamental factor in determining the timeliness of a motion to
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`intervene, Intel fails to articulate what further changes it intends to seek to the existing orders
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`and schedule – other than to make very clear that it reserves the right to make changes. (See Dkt.
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`151 at 3 n.1.)
`
`Intel has also refused to explain – to Alacritech or the Court – why it delayed its motions
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`to intervene in the CenturyLink and Wistron cases until five months after it moved to intervene
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`in the Dell case. It seems wholly implausible that any after-arising events triggered Intel’s
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`untimely efforts to intervene and Intel certainly has not identified any such events. Intel refers
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`vaguely to an agreement to indemnify Wistron (Dkt. 151 at 2, 9), but does not attach or cite to
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`any such agreement, so there is no way to know when it was entered or the terms of the alleged
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`financial interest it created. Similarly, Intel alleges in passing that Dell has agreed to indemnify
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`CenturyLink and that Intel has apparently agreed to assume liability for that indemnification
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`(Dkt. 150 at 2), but it does not bother to provide any specifics of the timing or terms of these
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`agreements or even evidence that they actually exist. Intel’s motion is devoid of any mention,
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`much less justification, for its several month delay in seeking to intervene.
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`The sole basis set forth in Intel’s Motions for finding them timely is both factually
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`inaccurate and legally irrelevant. Specifically, Intel alleges that the case is “at an early stage”
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`because “Alacritech is currently seeking to add many new allegations of infringement against
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`Intel, including a new patent and product line and previously unaccused technologies . . . .”
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`(Dkt. 150 at 6-7.) As set forth more fully in Alacritech’s Motion to Amend (Dkt. 135, 157), it is
`
`
`
`7
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`INTEL EX. 1418.011
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`

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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 12 of 21 PageID #: 6575
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`Intel, not Alacritech, that sought to expand the scope of the litigation by filing counterclaims in
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`reply relating to the ’699 Patent. Moreover, Intel fails to disclose in its Motions that the ’699
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`Patent and the “new product line” (Intel’s InfiniBand products) have nothing to do with its
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`requests to intervene in the Wistron or CenturyLink cases. It does not appear that either
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`CenturyLink or Wistron purchase Intel InfiniBand products or that anything in the revised
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`infringement contentions – which, notably, Alacritech served on Intel on February 24 while its
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`motion was still pending because Intel asked it to (and not in any nefarious effort to circumvent
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`the rules) – implicates Intel’s alleged interests in the CenturyLink or Wistron litigations at all. In
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`its Motion, Intel does not and cannot explain how a motion to amend the claims against Intel,
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`which is unrelated to any products it supplies to Wistron or CenturyLink could possibly render
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`its Motions to Intervene timely.
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`Intel’s remaining, perfunctory statements are equally irrelevant. Intel notes that Cavium
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`recently intervened; but as set forth in Alacritech’s responses to Cavium’s Motion to Intervene
`
`(Dkt 113, 119), Motion to Amend the Docket Control Order (Dkt. 158), and Cavium’s Motion
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`To Amend the Protective Order (Dkt. 164), Cavium’s seriatim requests have been untimely and
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`continue to prejudice the orderly conduct of this litigation. Intel cannot be allowed to perpetuate
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`and amplify the prejudice caused by the spate of unnecessary, untimely motion practice initiated
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`by Cavium, by suggesting that such motion practice somehow opens the door to additional
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`motions to intervene by Intel. At some point, the serial motions to intervene have to stop. The
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`time for such motions has long passed – months ago, when Intel first moved to intervene in the
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`Dell case – and Intel’s subsequent motions should be denied as untimely.
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`2.
`
`The Balance of Prejudice Weighs Against Intervention
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`Intel’s timeliness argument also fails to address the substantial investment of resources by
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`Alacritech and its interest in the expeditious resolution of the litigation initiated nine months ago.
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`The parties have already engaged in substantial motion practice, and the Court has entered
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`crucial orders relating to the appropriate scheduling and procedure for the litigation, which Intel
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`seeks to undermine with its Motions to Intervene. Intel and Alacritech have both made
`
`
`
`8
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`INTEL EX. 1418.012
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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 13 of 21 PageID #: 6576
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`substantial document productions and Alacritech has expended significant resources to obtain,
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`through motion practice spurred by Defendants’ recalcitrance, the document discovery it needs
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`in advance of the impending substantial completion deadline on April 4. Alacritech has also
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`diligently sought to conduct deposition discovery including issuing its deposition notices to all
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`Defendants and Intervenors on February 9, 2017 and urging the parties, on a nearly daily basis,
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`to provide a proposed deposition schedule. That Defendants and Intervenors have refused to
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`provide any dates for their depositions only underscores their discovery malfeasance; it does not
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`indicate that the case is “at an early stage” such that Intel’s intervention in the CenturyLink and
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`Wistron matters and the promised, concomitant efforts to further delay the proceedings (Dkt. 150
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`at 3 n.1), would not be hugely prejudicial to Alacritech and the Court’s mutual interest in
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`expeditious resolution of the cases. Moreover, Intel is incorrect in its assertion that no
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`depositions have been taken; the day it filed its motions to intervene, the deposition of Intel’s
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`claim construction expert, Mr. Mark Lanning, was conducted, and Alacritech’s claim
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`construction expert, Dr. Paul Min, was deposed shortly thereafter on March 21. In addition,
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`Alacritech has agreed to conduct the deposition of third party Mellanox during the first week of
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`May (on a specific date to be determined) and is working with third party Broadcom to schedule
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`its deposition as well. All of these substantial efforts could be eschewed by the motion practice
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`that Intel suggests will follow Intel’s intervention into the Wistron and CenturyLink cases.
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`Similarly, as Intel acknowledges in its Motions to Intervene, claim construction
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`proceedings are well underway. (Dkt. 150 at 7.) The parties have exchanged proposed
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`constructions, conferred extensively, and engaged in claim construction discovery including
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`expert depositions in anticipation of filing their opening briefs/tech tutorials next week on April
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`4. To the extent Intel intends to derail these proceedings by asserting itself in the CenturyLink
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`and Wistron litigations (which it refused to guarantee it would not do), that would be
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`substantially prejudicial to Alacritech and all the existing parties who have spent a lot of time
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`and resources to advance claim construction proceedings to their current stage.
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`9
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`INTEL EX. 1418.013
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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 14 of 21 PageID #: 6577
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`Fundamentally, as Intel acknowledges in its Motions, Alacritech’s position on Intel’s
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`motions to intervene has been driven exclusively by Alacritech’s reasonable request for
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`assurance that Intel will not attempt to use its intervention to inject additional delays, costly
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`motion practice, and efforts to derail discovery negotiations and adherence to the reasonable
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`Docket Control Order in this case. Absent such assurances, Intel’s request for intervention is
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`simply too late and runs the risk of substantially prejudicing the existing parties and the conduct
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`of this litigation as a whole.
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`B.
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`Intel Is Not An Intervenor By Right
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`1.
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`Intel Does Not Have A Sufficient Interest In The Cases To Make It An
`Intervenor By Right
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`(a)
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`Against CenturyLink
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`Intel’s argument that it has a “compelling interest” in the CenturyLink litigation is both
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`factually and legally unsupported. The premise of Intel’s argument, that a manufacturer should
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`be permitted to defend against infringement allegations leveled against its products is essentially
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`irrelevant to this case. (Dkt. 150 at 10.) It does not appear that CenturyLink is a customer of
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`Intel at all. Similarly, Intel asserts that it has an “indirect indemnification” relationship with
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`CenturyLink but does not explain the terms and conditions of that arrangement, much less cite
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`any documents evidencing this alleged relationship. Instead, Intel’s argument that it may at
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`some point be liable due to Dell’s partial indemnification of CenturyLink appears to be pure
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`conjecture. Intel has not cited any evidence of Dell’s purported indemnification, much less any
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`agreement by Intel to assume such an indemnification obligation. The same is true of Intel’s
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`blanket conclusion that an adverse ruling could “substantially damage Intel’s reputation.” (Dkt.
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`150 at 10.) Intel provides no explanation of why that would be the case, much less factual
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`evidence supporting a legitimate concern since CenturyLink is not a customer and Intel can
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`protect its own products from an adverse ruling in the case pending against it.
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`10
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`INTEL EX. 1418.014
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`Case 2:16-cv-00693-JRG-RSP Document 168 Filed 03/29/17 Page 15 of 21 PageID #: 6578
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`Intel has not cited a single case (and Alacritech is not aware of any) that supports the
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`notion that an indirect supplier with no customer relationship or indemnity agreement with a
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`party to litigation is an intervenor by right. That Alacritech has brought claims against Intel for
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`indirect infringement does not change this assessment. Although Intel’s motion avoids expressly
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`saying so, the logic underlying it reflects a simplistic (and erroneous) view that Intel is entitled to
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`intervene in any patent case in which its products might be indirectly involved. See SynQor, Inc.
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`v. Artesyn Techs., Inc., No. 11-444, 2013 WL 12133693, at *5 (E.D. Tex. May 28, 2013)
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`(holding direct infringer not entitled to intervene in suit against indirect infringer).
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`The cases Intel does cite are readily distinguishable. Neither the Supreme Court case of
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`Chandler & Price v. Brandtjen & Kluge, nor the Federal Circuit case of Tegic Communic