Case 2:20-cv-00051-JRG Document 65 Filed 09/03/20 Page 1 of 13 PageID #: 397
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`VARTA MICROBATTERY GMBH,
`Plaintiff,
`
`v.
`
`COSTCO WHOLESALE CORPORATION
`
`C.A. No. 2:20-cv-0051-JRG
`
`BEST BUY CO., INC., ET AL
`
`PEAG, LLC
`
`AUDIO PARTNERSHIP LLC, ET AL
`Defendants.
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`LEAD CASE
`C.A. No. 2:20-cv-00054-JRG
`
`C.A. No. 2:20-cv-00071-JRG
`
`C.A. No. 2:20-cv-00138-JRG
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`PLAINTIFF VARTA MICROBATTERY GMBH’S OPPOSITION TO DEFENDANTS’
`MOTION TO STAY PENDING INTER PARTES REVIEW
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`VARTA Ex. 2006 Page 1 of 14
`PEAG/Audio Partnership v. VARTA
`IPR2020-01212
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`

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`Case 2:20-cv-00051-JRG Document 65 Filed 09/03/20 Page 2 of 13 PageID #: 398
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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION .......................................................................................................... 1
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`LEGAL STANDARD..................................................................................................... 2
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`III.
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`ARGUMENT ................................................................................................................. 3
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`A.
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`B.
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`C.
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`A Stay Will Not Simplify the Issues .................................................................... 3
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`Staying this Case Will Unduly Prejudice VARTA ............................................... 5
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`The Stage of This Case Weighs Against a Stay .................................................... 6
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`IV.
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`CONCLUSION .............................................................................................................. 7
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`VARTA Ex. 2006 Page 2 of 14
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`Case 2:20-cv-00051-JRG Document 65 Filed 09/03/20 Page 3 of 13 PageID #: 399
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`Cases
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`TABLE OF AUTHORITIES
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`AGIS Software Dev. LLC v. Google LLC,
`No. 2:19-cv-00361-JRG (E.D. Tex. July 30, 2020) ................................................................. 3
`
`Ambato Media, LLC v. Clarion Co., Ltd.,
`No. 2:09-cv-242-JRG, 2012 WL 194172 (E.D. Tex. Jan. 23, 2012) ........................................ 5
`
`Apple Inc. v. Fintiv, Inc.,
`IPR2020-00019 (PTAB May 13, 2020) .................................................................................. 7
`
`Cellular Commc’ns Equip. LLC v. Samsung Elecs. Co. Ltd.,
`No. 6:14-cv-759, 2015 WL 11143485 (E.D. Tex. Dec. 16, 2015)............................................ 3
`
`Comcast Cable Commc’ns Corp., LLC v. Finisar Corp.,
`No. C 06-04206 WHA, 2007 WL 1052883 (N.D. Cal. Apr. 5, 2007) ...................................... 2
`
`Fresenius USA, Inc. v. Baxter Int’l, Inc.,
`582 F.3d 1288 (Fed. Cir. 2009)............................................................................................... 2
`
`GreenThread, LLC v. Samsung Electronics Co., Ltd. et al.,
`No. 2:19-CV-00147 (E.D. Tex. Feb. 4, 2020) ..................................................................... 1, 3
`
`Lennon Image Techs., LLC v. Macy’s Retail Holdings, Inc.,
`No. 2:13-cv-235-JRG, 2014 WL 4652117 (E.D. Tex. Sept. 18, 2014) ..................................... 4
`
`NHK Spring Co., Ltd. v. Intri-Plex Techs., Inc.
`IPR2018-00752 (PTAB Sept. 12, 2018).............................................................................. 6, 7
`
`Oyster Optics, LLC v. Infinera Corp.,
`No. 2:19-cv-00257-JRG (E.D. Tex. Feb. 4, 2020) ................................................................... 3
`
`Peloton Interactive, Inc. v. Flywheel Sports, Inc.,
`2:18-cv-030390, 2019 WL 3826051 (E.D. Tex Aug. 14, 2019) ........................................... 5, 6
`
`Ramot At Tel Aviv Univ. Ltd. v. Cisco Sys., Inc.,
`No. 2:19-cv-00225-JRG (E.D. Tex. Feb. 4, 2020) ................................................................... 3
`
`Realtime Data LLC v. Actian Corp.,
`No. 6:15-CV-463- RWS-JDL, 2016 WL 3277259 (E.D. Tex. June 14, 2016) ................. 2, 3, 6
`
`Saint Lawrence Comm'ns LLC v. ZTE Corp.,
`No. 2:15-CV-349-JRG, 2017 WL 3396399 (E.D. Tex. Jan. 17, 2017) .................................... 4
`
`Solas OLED Ltd. v. Samsung Display Co., Ltd.,
`No. 2:19-cv-00152-JRG (E.D. Tex. Feb. 4, 2020) ................................................................... 3
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`VARTA Ex. 2006 Page 3 of 14
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`Case 2:20-cv-00051-JRG Document 65 Filed 09/03/20 Page 4 of 13 PageID #: 400
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`Soverain Software LLC v. Amazon.Com, Inc.,
`356 F. Supp. 2d 660 (E.D. Tex. 2005) ................................................................................ 2, 3
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`Trover Grp., Inc. v. Dedicated Micros USA,
`No. 2:13-CV-1047-WCB, 2015 WL 1069179 (E.D. Tex. Mar. 11, 2015)............................ 1, 2
`
`Uniloc 2017 LLC v. Samsung Elecs. Am., Inc.,
`No. 2:19-cv-00125-JRG, (E.D. Tex. Feb. 4, 2020) .............................................................. 3, 4
`Statutes
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`35 U.S.C. § 141 .......................................................................................................................... 6
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`35 U.S.C. § 314 ...................................................................................................................... 6, 7
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`35 U.S.C. § 315 .......................................................................................................................... 4
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`VARTA Ex. 2006 Page 4 of 14
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`Case 2:20-cv-00051-JRG Document 65 Filed 09/03/20 Page 5 of 13 PageID #: 401
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`I.
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`INTRODUCTION
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`Plaintiff VARTA Microbattery GmbH (“VARTA”) respectfully opposes the Motion to
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`Stay Pending Inter Partes Review (Dkt. 64, “Motion”) filed by Defendants PEAG, LLC d/b/a
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`JLab Audio, and Audio Partnership LLC and Audio Partnership PLC d/b/a Cambridge Audio
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`(collectively “Defendants”).
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`In this Court, it is “not just the majority rule; it is the universal practice” to deny pre-
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`institution motions to stay. Trover Grp., Inc. v. Dedicated Micros USA, No. 2:13-CV-1047-
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`WCB, 2015 WL 1069179, at *6 (E.D. Tex. Mar. 11, 2015); see also GreenThread, LLC v.
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`Samsung Electronics Co., Ltd. et al., No. 2:19-CV-00147, Dkt. 43 at 1 (E.D. Tex. Feb. 4, 2020)
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`(“It is the Court’s established practice to consider that motions to stay pending IPR proceedings
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`that have not been instituted are inherently premature and should be denied as such.”).
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`Defendants ask this Court to ignore the “universal” and “established practice,” but they provide
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`no justification for doing so. For this reason alone, Defendants’ Motion should be denied.
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`Moreover, each of the relevant factors—simplification of the issues, prejudice, and stage
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`of the lawsuit—weigh decidedly against granting a stay in this case regardless of whether the
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`PTAB institutes review of the patents-in-suit. Defendants raised in this lawsuit a myriad of
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`invalidity defenses that cannot be resolved by the PTAB. Absent an improbable finding by the
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`PTAB that all claims are invalid, all issues—including invalidity—will need to be resolved by
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`this Court. Thus, a stay is not likely to result in significant simplification of the issues in this
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`case.
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`VARTA will also be substantially prejudiced if this case is stayed. VARTA
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`manufactures and sells batteries covered by the asserted patents. Defendants have in the past
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`sold, and continue to sell, accused products with infringing batteries purchased from a Chinese
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`battery manufacturer, MIC-Power. This continuing infringement has adversely impacted
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`VARTA Ex. 2006 Page 5 of 14
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`VARTA in the market and that harm will continue until this case is resolved. A stay would
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`significantly delay such resolution because the PTAB would not reach a final determination until
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`months after trial is scheduled in this lawsuit. Nor does the stage of the litigation favor a stay.
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`The parties have already expended significant resources in this case, e.g., VARTA has served its
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`infringement contentions and voluminous discovery, and Defendants have served invalidity
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`contentions. Claim construction is about to commence. The progress in this case should not be
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`derailed simply because Defendants wish to pursue a subset of their invalidity defenses in a
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`second forum.
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`For the additional reason that all factors weigh against a stay, Defendants’ motion should
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`be denied.
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`II.
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`LEGAL STANDARD
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`A decision to stay is within the sound discretion of the Court, and “there is no per se rule
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`that patent cases should be stayed pending PTO proceedings, because such a rule ‘would invite
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`parties to unilaterally derail litigation.’” Realtime Data LLC v. Actian Corp., No. 6:15-CV-463-
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`RWS-JDL, 2016 WL 3277259, at *1 (E.D. Tex. June 14, 2016) (quoting Soverain Software LLC
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`v. Amazon.Com, Inc., 356 F. Supp. 2d 660, 662 (E.D. Tex. 2005)). If such a stay was “routinely
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`available to delay the judicial resolution of disputes, the procedure [would be] subject to
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`inequity, if not manipulation and abuse, through the delays that are inherent in PTO activity.”
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`Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1305 (Fed. Cir. 2009) (Newman J.,
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`concurring). “If litigation were stayed every time a claim in suit undergoes reexamination,
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`federal infringement actions would be dogged by fits and starts.” Comcast Cable Commc’ns
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`Corp., LLC v. Finisar Corp., No. C 06-04206 WHA, 2007 WL 1052883, at *1 (N.D. Cal. Apr. 5,
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`2007).
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`VARTA Ex. 2006 Page 6 of 14
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`This Court has a consistent practice of denying motions to stay when the PTAB has yet to
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`institute post-grant proceedings. Trover Grp., 2015 WL 1069179, at *6 (“This Court’s survey of
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`cases from the Eastern District of Texas shows that when the PTAB has not yet acted on a
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`petition for inter partes review, the courts have uniformly denied motions for a stay.”); AGIS
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`Software Dev. LLC v. Google LLC, No. 2:19-cv-00361-JRG, at *2 (E.D. Tex. July 30, 2020);
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`GreenThread, No. 2:19-CV-00147, Dkt. 43 at 1.
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`In determining whether to stay, courts consider three factors: (1) whether the stay would
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`unduly prejudice or present a clear tactical disadvantage to the non-moving party; (2) whether a
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`stay will simplify the issues in question and trial of the case; and (3) the stage of the litigation
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`including whether discovery is complete and whether a trial date has been set. Realtime Data,
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`2016 WL 3277259, at *1 (citing Soverain, 356 F. Supp. 2d at 662). It is Defendants’ burden to
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`show that a stay is appropriate. See, e.g., Cellular Commc’ns Equip. LLC v. Samsung Elecs. Co.
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`Ltd., No. 6:14-cv-759, 2015 WL 11143485, at *2 (E.D. Tex. Dec. 16, 2015). Defendants cannot
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`meet that burden here because all three factors weigh against a stay.
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`III. ARGUMENT
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`A.
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`A Stay Will Not Simplify the Issues
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`Defendants have identified no reason why they are entitled to an exception to the Court’s
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`practice of denying requests for a stay before the institution of IPRs because it is impossible to
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`determine whether the stay would simplify any issues. See, e.g., Greenthread, No. 2:19-cv-
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`00147-JRG, Dkt. 43 at 2 (“[I]f the PTAB denies institution of the IPRs, there will be no
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`simplification of the case before the Court at all.”); see also Solas OLED Ltd. v. Samsung
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`Display Co., Ltd., No. 2:19-cv-00152-JRG, Dkt. 69 (E.D. Tex. Feb. 4, 2020); Ramot At Tel Aviv
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`Univ. Ltd. v. Cisco Sys., Inc., No. 2:19-cv-00225-JRG, Dkt. 54 (E.D. Tex. Feb. 4, 2020); Oyster
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`Optics, LLC v. Infinera Corp., No. 2:19-cv-00257-JRG, Dkt. 62 (E.D. Tex. Feb. 4, 2020); Uniloc
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`VARTA Ex. 2006 Page 7 of 14
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`2017 LLC v. Samsung Elecs. Am., Inc., No. 2:19-cv-00125-JRG, Dkt. 34 (E.D. Tex. Feb. 4,
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`2020). Defendants have cited no contrary authority from this Court that would support their
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`request for a stay given the pre-institution stage of the IPRs.
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`The assertions made by Defendants in their Motion are, in fact, no different than the
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`arguments made in numerous cases where requests for stays have been denied. Defendants
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`contend that a stay will likely simplify or eliminate issues, but that assertion is at best
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`speculation. At present, the PTAB has not instituted any of Defendants’ IPRs and will not even
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`decide whether to institute until early 2021. (Motion at 2.) Unless institution occurs, no patent
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`claims can be cancelled. Moreover, even if institution occurs, it is entirely speculative as to
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`whether any claims will be cancelled or amended. Lennon Image Techs., LLC v. Macy’s Retail
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`Holdings, Inc., No. 2:13-cv-235-JRG, 2014 WL 4652117, at *3 (E.D. Tex. Sept. 18, 2014)
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`(“[There] is no guarantee that the claims will be amended or cancelled during the IPR.”).
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`Quite apart from the merits, and as discussed further below, the PTAB is unlikely to
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`institute Defendants’ IPRs given the progress and schedule of this lawsuit. But even if institution
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`occurs, Defendants have in their Invalidity Contentions identified a myriad of invalidity defenses
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`that will not be resolved before the PTAB. These defenses include a significant number of
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`alleged invalidity positions based on indefiniteness, lack of written description, “improper
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`claiming” and anticipation and obviousness based on purported prior art systems—none of which
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`can be resolved by the PTAB even if institution is granted. Unless all claims are cancelled,
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`which VARTA submits is unlikely, these invalidity issues will need to be resolved by this Court
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`because Defendants would not be estopped from asserting them in this lawsuit. 35 U.S.C. §
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`315(e) (estoppel only applies to “any ground that the petitioner raised or reasonably could have
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`raised during that inter partes review.”); Saint Lawrence Comm'ns LLC v. ZTE Corp., No. 2:15-
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`VARTA Ex. 2006 Page 8 of 14
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`CV-349-JRG, 2017 WL 3396399, at *2 (E.D. Tex. Jan. 17, 2017) (determining that the
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`simplification factor weighed against a stay where the invalidity theories within the litigation
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`“far exceed the limited scope of the pending IPR.”).
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`Little if any simplification is likely to occur as a result of the filed IPRs regardless of
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`whether institution is granted. This factor weighs against a stay.
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`B.
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`Staying this Case Will Unduly Prejudice VARTA
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`A stay would unduly prejudice VARTA, “who has an interest in the timely enforcement
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`of its patent rights.” Ambato Media, LLC v. Clarion Co., Ltd., No. 2:09-cv-242-JRG, 2012 WL
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`194172, at *1 (E.D. Tex. Jan. 23, 2012). VARTA’s Preliminary Responses to Defendants’ IPR
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`Petitions are due by October 2020, the PTAB’s Institution Decisions are due by January 2021,
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`and any final determinations—assuming arguendo institution occurs—are not due until January
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`2022. By contrast, trial in this case is scheduled for Jury selection on June 7, 2021. (Dkt. 54.)
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`“Consequently, a final determination for the [challenged] Patent[s] would not be made until
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`[seven] months after the currently scheduled jury selection date, and this fact suggests that the
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`prejudice factor should weigh against a stay.” Peloton Interactive, Inc. v. Flywheel Sports, Inc.,
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`2:18-cv-030390, 2019 WL 3826051, at *4 (E.D. Tex Aug. 14, 2019). VARTA should not suffer
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`the prejudice and tactical disadvantage of having to wait to enforce its patent rights.
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`Moreover, VARTA’s interest in timely enforcement of its patent rights is particularly
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`heighted in this case. In its P.R. 3-1 Disclosures, VARTA identified many of its own products
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`that practice the patents Defendants infringe—a fact conveniently ignored by Defendants in their
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`Motion. See, e.g., Peloton, 2019 WL 3826051, at *3 (finding that “a stay would result in
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`heightened prejudice for [a patent owner that practices the patent] as compared to other cases.”).
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`Defendants are infringing the patents in suit by incorporating into their products infringing
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`batteries made by Chinese supplier MIC-Power. (See C.A. No. 2:20-cv-00138, Dkt. 1, at ¶¶ 24-
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`VARTA Ex. 2006 Page 9 of 14
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`30; C.A. No. 2:20-cv-00071, Dkt. 1, at ¶¶ 23-19.) The parties are thus at least in a de facto
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`competitive relationship and, in similar circumstances, this Court has recognized that the
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`prejudice factor weighs against a stay. Peloton, 2019 WL 3826051, at *4 (collecting cases).
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`On the other hand, if their request for a stay is denied, Defendants will not face any
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`prejudice beyond the ordinary burdens faced by any defendant in patent litigation. Defendants’
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`decision to pursue its invalidity defenses concurrently in a second forum does not justify
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`prejudicing VARTA by delaying resolution of its infringement claims and protecting its market
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`for the patented products. Realtime Data, 2016 WL 3277259, at *2 (citing 35 U.S.C. § 141(c)
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`(“Such a lengthy delay will result in significant prejudice to [VARTA] and, therefore, this factor
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`weighs against a stay.)).
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`This factor clearly weighs against a stay.
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`C.
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`The Stage of This Case Weighs Against a Stay
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`The parties have already expended significant resources on this case. Both VARTA and
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`Defendants have served and responded to interrogatories. Both sides have begun document
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`production. VARTA has already served its P.R. 3-1 and 3-2 Disclosures, Defendants have
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`served their P.R. 3-3 and 3-4 Disclosures, and the parties will exchange proposed terms for claim
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`construction on September 11, 2020. (See Dkt. 54.) The Claim Construction Hearing is set for
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`January 15, 2021, fact discovery closes on January 19, 2021, and jury selection is set for June 7,
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`2021. (Id.)
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`Indeed, given the stage and schedule of this lawsuit, the PTAB will likely deny institution
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`of Defendants’ IPR petitions. As explained above, a final determination on Defendants’ IPRs
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`would not be due until January 2022 assuming they were to be instituted—seven months after
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`the trial date in this case. (Motion at 2.) In NHK Spring Co., Ltd. v. Intri-Plex Techs., Inc., the
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`PTAB exercised its discretion under § 314(a) to deny institution because it would have been an
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`VARTA Ex. 2006 Page 10 of 14
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`Case 2:20-cv-00051-JRG Document 65 Filed 09/03/20 Page 11 of 13 PageID #: 407
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`inefficient use of PTAB resources to institute an IPR between the same parties when the same
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`invalidity dispute would be played out in the district court trial seven months before the IPR
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`would conclude. NHK Spring Co., Ltd. v. Intri-Plex Techs., Inc., IPR2018-00752, Paper 8 at 20
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`(PTAB Sept. 12, 2018) (precedential). Similarly, in Apple Inc. v. Fintiv, Inc., the PTAB
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`exercised its discretion under § 314(a) to deny institution where the same parties in the district
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`court litigation had, by the time of the institution decision, exchanged infringement and
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`invalidity contentions, started discovery, the Court had completed claim construction, and the
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`district court trial would conclude two months before the final written decision was due. Apple
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`Inc. v. Fintiv, Inc., IPR2020-00019, Paper 15 at 13-14, 17 (PTAB May 13, 2020) (informative).
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`The facts in the instant lawsuit are essentially the same as NHK Spring and Apple. The
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`parties have exchanged infringement and invalidity contentions. The decision whether to even
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`institute IPRs by the PTAB will come on the heels of a Markman decision and close of fact
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`discovery in this case. And the trial in this Court will occur about seven months before any final
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`decision by the PTAB. It is, therefore, probable the PTAB will deny institution based on the
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`stage of this case. Regardless, the trial in this case is scheduled to occur months before any
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`possible determination by the PTAB, and VARTA should not be prejudiced by having this case
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`stayed thereby delaying resolution of its infringement claim.
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`This factor weighs heavily against a stay in this case.
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`IV. CONCLUSION
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`For the foregoing reasons, Defendants’ Motion should be denied.
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`VARTA Ex. 2006 Page 11 of 14
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`Dated: September 3, 2020
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`Respectfully submitted,
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`/s/ Andrew W. Stinson
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`H. Michael Hartmann (admitted pro hac vice)
`IL State Bar No. 1146130
`Wesley O. Mueller (admitted pro hac vice)
`IL State Bar No. 6199650
`Robert T. Wittmann (admitted pro hac vice)
`IL State Bar No. 6273264
`J. Karl Gross (admitted pro hac vice)
`IL State Bar No. 6275041
`LEYDIG, VOIT & MAYER, LTD.
`Two Prudential Plaza
`180 North Stetson Avenue, Suite 4900
`Chicago, IL 60601
`312-616-5600
`mhartmann@leydig.com
`wmueller@leydig.com
`bwittmann@leydig.com
`kgross@leydig.com
`
`Andrew W. Stinson
`State Bar No. 24028013
`RAMEY & FLOCK, PC
`100 E. Ferguson Street, Suite 404
`Tyler, TX 75702
`903-597-3301
`andys@rameyflock.com
`
`Attorneys for VARTA Microbattery GmbH
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`VARTA Ex. 2006 Page 12 of 14
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`Case 2:20-cv-00051-JRG Document 65 Filed 09/03/20 Page 13 of 13 PageID #: 409
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that on September 3, 2020, a true and correct copy of the
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`foregoing document was served on all attorneys of record who have consented to electronic service
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`via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
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` /s/ Andrew W. Stinson
`Andrew W. Stinson
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`VARTA Ex. 2006 Page 13 of 14
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`Case 2:20-cv-00051-JRG Document 65-1 Filed 09/03/20 Page 1 of 1 PageID #: 410
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`VARTA MICROBATTERY GMBH,
`
`
`Plaintiff,
`v.
`
`
`COSTCO WHOLESALE CORPORATION
`
`BEST BUY CO., INC., ET AL
`
`PEAG, LLC
`
`AUDIO PARTNERSHIP LLC, ET AL
`
`
`Defendants.
`
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`C.A. No. 2:20-cv-0051-JRG
`
`LEAD CASE
`C.A. No. 2:20-cv-00054-JRG
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`C.A. No. 2:20-cv-00071-JRG
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`C.A. No. 2:20-cv-00138-JRG
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`
`
`
`ORDER DENYING DEFENDANTS’
`MOTION TO STAY PENDING INTER PARTES REVIEW
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`Before the Court is Defendants’ Opposed Motion to Stay Pending Inter Partes Review in
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`Case Nos. 2:20-cv-00071 and 2:20-cv-00138. The Court, having considered same and responses
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`thereto, is of the opinion the motion should be DENIED.
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`VARTA Ex. 2006 Page 14 of 14
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