Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`CLOUDOFCHANGE, LLC,
`
`Plaintiff,
`
`Civil Action No. 6:22-CV-00634-ADA-DTG
`
`JURY TRIAL DEMANDED
`
`v.
`
`CLOVER NETWORK, INC.,
`
`Defendant.
`
`OPPOSED MOTION TO STAY PENDING INTER PARTES
`REVIEW OF U.S. PATENT NOS. ’640, ’793, and ’012
`
`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 2 of 16
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`TABLE OF CONTENTS
`
`TABLE OF CONTENTS .............................................................................................................. I
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`TABLE OF AUTHORITIES .................................. ERROR! BOOKMARK NOT DEFINED.
`
`EXHIBITS ................................................................................................................................... IV
`
`I.
`
`INTRODUCTION.................................................................................................................1
`
`II. FACTUAL AND PROCEDURAL HISTORY ...................................................................2
`
`A. Plaintiff sued Clover on June 17, 2022. .........................................................................2
`
`B. No significant case events have occurred or are set to occur in the near future. ......3
`
`C. The PTAB instituted IPR of the Asserted Patents and Asserted Claims...................3
`
`D. Clover filed petitions for IPR over the same Asserted Patents and Claims at
`issue in the Lightspeed IPR proceedings and has moved to join in those
`proceedings. .....................................................................................................................4
`
`III. ARGUMENT .........................................................................................................................5
`
`A. Legal Standard ................................................................................................................5
`
`B. All of the Relevant Factors Support Granting a Stay. ................................................6
`
`1. A Stay Will Not Prejudice Plaintiff. .......................................................................6
`
`2. The Early Stage of This Case Favors Granting A Stay. ......................................7
`
`3. The PTAB’s Decisions Will Either Resolve this Case or Significantly Narrow
`the Issues Involved. ..................................................................................................8
`
`IV. CONCLUSION ...................................................................................................................10
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`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 3 of 16
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`TABLE OF AUTHORITIES
`
`
`
`Page(s)
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`Federal Cases
`
`CANVS Corp. v. U.S.,
`118 Fed. Cl. 587 (2014) .............................................................................................................8
`
`Cloudof Change, LLC v. NCR Corp.,
`No. 6-19-cv-00513-ADA, 2022 WL 16542864 (W.D. Tex. Oct. 28, 2022) .............................6
`
`EchoStar Techs. Corp. v. TiVo, Inc.,
`No. 5:05-cv-81, 2006 WL 2501494 (E.D. Tex. July 14, 2006) .................................................6
`
`Kirsch Research & Dev., LLC v. IKO Indus., Inc.,
`No. 6:20-cv-00317-ADA, 2021 WL 4555610 (W.D. Tex. Oct. 5, 2021) ............................2, 10
`
`Kirsch Research & Dev., LLC v. Tarco Specialty Prods., Inc.,
`No. 6:20-cv-00318-ADA, 2021 WL 4555804 (W.D. Tex. Oct. 4, 2021) ............2, 5, 6, 7, 8, 10
`
`Multimedia Content Mgmt. LLC v. Dish Network L.L.C.,
`No. 6:18-cv-00207-ADA, 2019 WL 11706231 (W.D. Tex. May 30, 2019) .............................5
`
`Murata Mach. USA v. Daifuku Co., Ltd.,
`830 F.3d 1357 (Fed. Cir. 2016)..................................................................................................5
`
`NFC Techs. LLC v. HTC Am., Inc.,
`No. 2:13-cv-1058, 2015 WL 1069111 (E.D. Tex. Mar. 11, 2015) ........................................5, 9
`
`Sonrai Memory Ltd. v. W. Digital Techs., Inc.,
`No. 6:21-cv-01168-ADA, 2022 WL 3108818 (W.D. Tex. Aug. 4, 2022) ..................2, 8, 9, 10
`
`Stragent LLC v. BMW of N. Am. LLC,
`No. 6:16-cv-446, 2017 WL 3709083 (E.D. Tex. July 11, 2017) ...........................................7, 8
`
`TC Tech. LLC v. T-Mobile USA, Inc.,
`No. 6-20-cv-00899-ADA, 2021 WL 8083373 (W.D. Tex. Dec. 7, 2021) .............................2, 7
`
`Universal Elecs., Inc. v. Universal Remote Control, Inc.,
`943 F. Supp. 2d 1028 (C.D. Cal. 2013) .....................................................................................8
`
`VirtualAgility, Inc. v. Salesforce.com, Inc.,
`759 F.3d 1307 (Fed. Cir. 2014)..............................................................................................6, 7
`
`Xylon Licensing LLC v. Lone Star Nat'l Bancshares-Texas, Inc.,
`No. 6:21-cv-00302-ADA, 2022 WL 2078030 (W.D. Tex. June 8, 2022) .............1, 2, 5, 7, 8, 9
`
`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 4 of 16
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`Federal Statutes
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`35 U.S.C. § 315(e) .........................................................................................................................10
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`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 5 of 16
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`EXHIBITS
`
`Exhibit A
`
`Exhibit A-1
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`Declaration of J. Stephen Ravel
`
`Institution Decision - ’640 Patent
`
`Exhibit A-2
`
`Institution Decision - ’012 Patent
`
`Exhibit A-3
`
`Institution Decision - ’793 Patent
`
`Exhibit A-4
`
`Clover’s Petition for IPR - ’640 Patent
`
`Clover’s Motion for Joinder - ’640 Patent
`
`Clover’s Petition for IPR - ’012 Patent
`
`Clover’s Motion for Joinder - ’012 Patent
`
`Clover’s Petition for IPR - ’793 Patent
`
`Clover’s Motion for Joinder - ’793 Patent
`
`Exhibit A-5
`
`Exhibit A-6
`
`Exhibit A-7
`
`Exhibit A-8
`
`Exhibit A-9
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
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`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 6 of 16
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`I.
`Defendant Clover Network LLC seeks a temporary stay of this litigation pending the
`
`INTRODUCTION
`
`outcome of inter partes review (“IPR”) proceedings before the Patent Trial and Appeal Board
`
`(“PTAB”)
`
`that will materially
`
`impact—and potentially
`
`resolve—this case. Plaintiff
`
`CloudofChange, LLC alleges infringement of three patents—United States Patent Nos. 9,400,640
`
`(“’640 Patent”), 10,083,012 (“’012 Patent”), and 11,226,793 (“’793 Patent”) (“Asserted Patents”).
`
`Upon the petitions of non-party Lightspeed POS Inc. (“Lightspeed”), the PTAB has instituted IPR
`
`proceedings over the same three patents and claims at issue in this suit.1 On November 21 and
`
`December 1, 2022, Clover filed substantively identical petitions for IPR as the Lightspeed
`
`petitions—each challenging the same Asserted Patents—and corresponding motions to join the
`
`Lightspeed IPR proceedings. Lightspeed does not oppose joinder.2
`
`Because the PTAB’s final decisions on the Lightspeed IPRs—to which Clover is seeking
`
`joinder—will either significantly narrow the issues of this case or dispose of it altogether, Clover
`
`respectfully seeks a stay pending the PTAB’s decisions. This case is in its infancy, and, absent a
`
`brief stay, the parties and the Court will waste time and resources needlessly litigating claims or
`
`issues that will be addressed by the PTAB’s impending rulings. Indeed, this Court has repeatedly
`
`and recently found a stay warranted in similar circumstances, including in Xylon Licensing LLC v.
`
`Lone Star Nat'l Bancshares-Texas, Inc., No. 6:21-cv-00302-ADA, 2022 WL 2078030, at *1 (W.D.
`
`Tex. June 8, 2022):
`
`1 Plaintiff has a lawsuit against Lightspeed pending in this Court. See CloudofChange, LLC v.
`Lightspeed POS Inc., 6:21-cv-01102-ADA.
`
`2 The PTAB has not yet ruled on Clover’s petitions or motions for joinder. Clover will notify the
`Court when the PTAB issues its rulings.
`
`

`

`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 7 of 16
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`• The “case remains in its infancy, having completed no claim construction and
`discovery to date” (id. at *3);
`• “Neither the Markman hearing nor fact discovery have been completed” (id.);
`• The PTAB’s decision will be issued long before trial (id. at *3);
`• “Little-to-no judicial resources have been expended on this case…” (id.);
`• “[T]he PTAB has found a likelihood that [the asserted claims of the patent] will
`be invalidated” (id.); and
`• “The PTAB’s final decision could provide information relevant to claim
`construction” (id).
`Xylon does not stand alone.3 In accordance with these authorities, and because a stay will
`
`substantially conserve judicial and party resources, Clover respectfully requests that the Court
`
`issue a stay pending the outcome of the IPR proceedings concerning the Asserted Patents.
`
`II.
`
`FACTUAL AND PROCEDURAL HISTORY
`
`A.
`
`Plaintiff sued Clover on June 17, 2022.
`
`Plaintiff filed this suit on June 17, 2022—after Lightspeed filed its petitions for inter partes
`
`review over the same Asserted Patents—alleging that four of Clover’s point-of-sale (“POS”)
`
`products infringe the Asserted Patents. Dkt. 1 ¶ 8. Plaintiff claims that it is the owner by assignment
`
`of the Asserted Patents, which are generally directed to a web-based POS-building system. Id. ¶¶
`
`2, 14. Plaintiff’s complaint alleges that Clover has infringed “one or more claims, including at least
`
`Claim 1 of the of the ’640 patent”; “one or more claims, including at least Claim 1 of the ’012
`
`3 See, e.g., Sonrai Memory Ltd. v. W. Digital Techs., Inc., No. 6:21-cv-01168-ADA, 2022 WL
`3108818, at *4 (W.D. Tex. Aug. 4, 2022); TC Tech. LLC v. T-Mobile USA, Inc., No. 6-20-cv-
`00899-ADA, 2021 WL 8083373 (W.D. Tex. Dec. 7, 2021); Kirsch Research & Dev., LLC v. IKO
`Indus., Inc., No. 6:20-cv-00317-ADA, 2021 WL 4555610 (W.D. Tex. Oct. 5, 2021); Kirsch
`Research & Dev., LLC v. Tarco Specialty Prods., Inc., No. 6:20-cv-00318-ADA, 2021 WL
`4555804 (W.D. Tex. Oct. 4, 2021).
`
`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 8 of 16
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`patent,” and “one or more claims, including at least Claim 1 of the ’793 Patent (collectively, the
`
`“Asserted Claims”).
`
`B.
`
`No significant case events have occurred or are set to occur in the near future.
`
`No significant events have occurred in the litigation to date. Both Clover’s motion to
`
`dismiss and its motion for transfer remain pending; the Court has not conducted any hearings; and
`
`the Court has not issued any substantive judicial decisions. Moreover, fact discovery does not open
`
`until April 11, 2023; the Markman Hearing in this case is not set to occur until April 10, 2023; and
`
`trial is well over a year away, currently set for April 22, 2024. Dkt. 17.
`
`C.
`
`The PTAB instituted IPR of the Asserted Patents and Asserted Claims.
`
`Significant relevant proceedings have, however, occurred at the PTAB. In a separate
`
`proceeding pending in this Court, Plaintiff sued Lightspeed for infringing the same claims and
`
`patents at issue in this suit. See CloudofChange, LLC v. Lightspeed POS Inc., 6:21-cv-01102-ADA.
`
`Lightspeed, thereafter, filed petitions for IPR challenging those Asserted Patents and Claims:
`
`IPR No. (Patent)
`IPR2022-00779
`(’640 Patent)
`
`IPR2022-00997
`(’012 Patent)
`
`IPR2022-01143
`(’793 Patent)
`
`Petition
`Filed
`3/30/22
`
`Institution
`Decision
`10/20/22
`
`Final Written Decision
`Deadline
`10/20/23
`
`5/5/22
`
`11/7/22
`
`6/13/22
`
`11/10/22
`
`11/7/23
`
`11/10/23
`
`See Exs. A-1, A-2, A-3.
`
`
`
`Lightspeed’s IPRs include multiple grounds of invalidity for the Asserted Patents and
`
`Claims:
`
`IPR No.
`(Patent)
`
`Asserted
`Claims
`
`Institution Decision
`Final Written Decision Deadline
`
`

`

`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 9 of 16
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`IPR2022-
`00779 (’640
`Patent)
`
`IPR2022-
`00997 (’012
`Patent)
`
`1, 14
`
`Ground 1: §103 in view of Manno for claims 1-23
`
`Ground 2: §103 in view of Woycik for claims 1-23
`
`Ground 3: §103 in view of Woycik and Manno for claims 1-28
`
`Ground 4: §103 in view of Olson and Woycik for claims 1-28
`
`1-2 and 6-13 Ground 1: §103 in view of Woycik for claims 1-20
`
`Ground 2: §103 in view of Woycik and Olson for claims 1-20
`
`Ground 3: §103 in view of Tengler for claims 1-20
`
`IPR2022-
`01143 (’793
`Patent)
`
`1-14, 9-11,
`42, and 44
`
`Ground 1: §103 in view of Woycik for claims 1-4, 7-28, 31-44
`
`Ground 2: §103 in view of Tengler for claims 1-4, 7-28, 31-44
`
`Id. The PTAB instituted review “for all challenged claims and on all grounds” in each Lightspeed
`
`IPR, and oral argument for all IPRs is set for August 2, 2023. Ex. A-1 at 24; Ex. A-2 at 15; Ex. A-
`
`3 at 18.
`
`D.
`
`
`
`Clover filed petitions for IPR over the same Asserted Patents and Claims at issue in
`the Lightspeed IPR proceedings and has moved to join in those proceedings.
`
`On November 21, 2022, Clover filed its petition for IPR of claims 1-28 of the ’640 Patent.
`
`Ex. A-4. On December 1, 2022, Clover filed its petitions for IPR of claims 1-20 of the ’012 Patent
`
`and claims 1-4, 7-28, and 31-44 of the ’793 Patent. Exs. A-6, A-8. In conjunction, Clover has filed
`
`motions to join the Lightspeed IPR proceedings. Exs. A-5, A-7, A-9. In its motions for joinder,
`
`Clover represented that “it will not seek to alter any grounds upon which the Board institutes the
`
`Lightspeed IPR and will seek no change in the existing schedule for that proceeding.” Ex. A-5 at
`
`1; Ex. A-7 at 1; Ex. A-9 at 1. Lightspeed does not oppose joinder. See id. at Ex. A-5 at 5; Ex. A-7
`
`at 5; Ex. A-9 at 5. If Clover’s motions are granted, therefore, Clover’s involvement will not delay
`
`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 10 of 16
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`the Lightspeed IPR proceedings, and those proceedings will continue apace, culminating in PTAB
`
`decisions no later than October 20, November 7, and November 10, 2023, respectively.
`
`
`
`Clover now seeks a stay of this litigation pending the PTAB’s decisions.
`
`A.
`
`Legal Standard
`
`III. ARGUMENT
`
`This Court “has the inherent power to control its own docket, including the power to stay
`
`proceedings before it.” Xylon Licensing LLC v. Lone Star Nat'l Bancshares-Texas, Inc., No. 6:21-
`
`cv-00302-ADA, 2022 WL 2078030, at *1 (W.D. Tex. June 8, 2022) (granting stay pending
`
`PTAB’s IPR); see also Murata Mach. USA v. Daifuku Co., Ltd., 830 F.3d 1357, 1361 (Fed. Cir.
`
`2016); Multimedia Content Mgmt. LLC v. Dish Network L.L.C., No. 6:18-cv-00207-ADA, 2019
`
`WL 11706231, at *1 (W.D. Tex. May 30, 2019) (“the question whether to stay proceedings
`
`pending inter partes review of a patent is a matter committed to the district court’s discretion”).
`
`When, as here, “the outcome of a PTO proceeding is likely to assist the court in determining patent
`
`validity or eliminate the need to try infringement issues,” this Court has held that a “stay is
`
`particularly justified.” Xylon Licensing, 2022 WL 2078030, at *1 (quoting NFC Techs. LLC v.
`
`HTC Am., Inc., No. 2:13-cv-1058, 2015 WL 1069111, at *1 (E.D. Tex. Mar. 11, 2015)).
`
` District courts generally consider three factors to determine whether a stay is appropriate:
`
`“(1) whether the stay will unduly prejudice the nonmoving party, (2) whether the proceedings
`
`before the court have reached an advanced stage, including whether discovery is complete and a
`
`trial date has been set, and (3) whether the stay will likely result in simplifying the case before the
`
`court.” Kirsch Research & Dev., LLC v. Tarco Specialty Prods., Inc., No. 6:20-cv-00318-ADA,
`
`2021 WL 4555804, at *2 (W.D. Tex. Oct. 4, 2021) (quoting NFC Techs., 2015 WL 1069111, at
`
`*2). “Essentially, courts determine whether the benefits of a stay outweigh the inherent costs based
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`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 11 of 16
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`on these factors.” Tarco Specialty Prods., 2021 WL 4555804, at *2 (quoting EchoStar Techs.
`
`Corp. v. TiVo, Inc., No. 5:05-cv-81, 2006 WL 2501494, at *1 (E.D. Tex. July 14, 2006)). Patent
`
`Office proceedings that are directed to all asserted claims and therefore can “dispose of the entire
`
`litigation” present “the ultimate simplification of
`
`issues.” See VirtualAgility, Inc. v.
`
`Salesforce.com, Inc., 759 F.3d 1307, 1318 (Fed. Cir. 2014).
`
`B.
`
`All of the Relevant Factors Support Granting a Stay.
`
`All of the relevant stay factors overwhelmingly support a stay of this case. A stay will not
`
`unduly prejudice Plaintiff, which has no weighty interest in speeding to trial on its money damages
`
`claim and which can only recover if its claims are valid. Second, this case is in its infancy, and the
`
`PTAB is set to issue final decisions on the validity of the Asserted Claims and Patents by October
`
`20, November 7, and November 10, 2023, respectively—well before the April 2024 trial setting.
`
`Because this case, the instituted Lightspeed IPR proceedings (in which Clover has moved to join),
`
`and the pending Clover IPR proceedings completely overlap, the PTAB’s decisions will inevitably
`
`simplify this case, if not eliminate it. A stay is therefore warranted to prevent a waste of party and
`
`judicial resources spent on issues that the PTAB’s forthcoming decisions will resolve.
`
`1.
`
`A Stay Will Not Prejudice Plaintiff.
`
`Granting the stay will benefit Plaintiff, not prejudice it. Plaintiff does not compete with
`
`Clover and makes no products. While the “Prayer” in Plaintiff’s complaint seeks injunctive relief,
`
`Plaintiff has not pursued that relief in this case or in prior proceedings asserting infringement of
`
`the same patents. See Dkt. 1 at 81; NCR Corp., No. 6-19-cv-00513. Plaintiff presumably has not
`
`pursued that relief because it makes no products, making injunctive relief inappropriate. Because
`
`any recovery by Plaintiff is thus limited to monetary damages, the only theoretical prejudice
`
`Plaintiff may suffer is a delay of a damages award.
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`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 12 of 16
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`It is well settled, however, that such possible delay alone does not establish undue prejudice
`
`as a matter of law. See, e.g., VirtualAgility, Inc. v. Salesforce.com, Inc., 759 F.3d 1307, 1318 (Fed.
`
`Cir. 2014). This Court repeatedly has explained that “[p]arty interest is diminished where only
`
`monetary recovery is available.” Xylon Licensing, 2022 WL 2078030, at *2; Tarco Specialty
`
`Prods., 2021 WL 4555804, at *2 (“[t]he weight of Plaintiff’s interest in timely enforcement is
`
`diminished here where a stay would merely delay Plaintiff’s potential monetary recovery”). Even
`
`then, such delay is prejudicial only if the PTAB’s decisions do not dispose of Plaintiff’s claims.
`
`Regardless, in the unlikely event that a stay delays an award of damages, that delay is not
`
`significant, given that the PTAB’s decisions will be issued no later than October 20, November 7,
`
`and November 10, 2023—well before the April 2024 trial in this case.
`
`Regardless, Plaintiff’s own actions establish that a temporary delay will not be undue or
`
`prejudicial. Plaintiff knew that IPR proceedings were potentially imminent when it filed this
`
`lawsuit, as it sued after Lightspeed filed its three IPR petitions on the same Asserted Patents and
`
`Claims. See TC Tech. LLC v. T-Mobile USA, Inc., No. 6-20-cv-00899-ADA, 2021 WL 8083373
`
`(W.D. Tex. Dec. 7, 2021). Moreover, Plaintiff’s complaint alleges that it sent Clover a notice letter
`
`generally referencing Clover’s portfolio of products and the ’640 Patent over four years ago. Dkt.
`
`1 at ¶ 23 & Ex. 4. Yet Plaintiff waited years to sue Clover, and it filed this litigation only after it
`
`sued NCR Corporation for infringement. Given Plaintiff’s own significant delays, the minor delay
`
`resulting from a stay pending the PTAB’s decisions is trivial. Because a stay will not unduly
`
`prejudice Plaintiff, the first relevant factor favors granting this Motion.
`
`The Early Stage of This Case Favors Granting A Stay.
`
`2.
`
`The second factor also favors a stay because this case is in its infancy. See Stragent LLC v.
`
`BMW of N. Am. LLC, No. 6:16-cv-446, 2017 WL 3709083, at *3 (E.D. Tex. July 11, 2017)
`
`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 13 of 16
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`(explaining that a stay is more likely to be granted when sought early in a case because “the
`
`majority of the expenses that the parties will incur are still in the future”). As detailed above,
`
`Clover has not yet filed an answer to the complaint, and trial is not set to begin until April 2024.
`
`See Dkt. 17. Fact discovery has not even opened, and the deadlines for preliminary invalidity
`
`contentions, the exchange of claim terms and constructions, and the disclosure of extrinsic
`
`evidence have not yet passed. Id. In other words, there has been no “protracted and expansive
`
`discovery” to date. Sonrai Memory Ltd. v. W. Digital Techs., Inc., No. 6:21-cv-01168-ADA, 2022
`
`WL 3108818, at *3 (W.D. Tex. Aug. 4, 2022) (explaining that this factor weighs against a stay if
`
`“protracted and expansive discovery has already occurred, or the court has expended significant
`
`resources”) (quoting CANVS Corp. v. U.S., 118 Fed. Cl. 587, 595 (2014)).
`
`The early stage of this case also means that the parties have not yet asked the Court to
`
`expend substantial resources in analyzing the issues or deciding disputes—an important factor that
`
`justifies a stay. See Tarco Specialty Prods., 2021 WL 4555804, at *2 (“If the court has expended
`
`significant resources, then courts have found that this factor weighs against a stay.” (internal
`
`quotations omitted)); Universal Elecs., Inc. v. Universal Remote Control, Inc., 943 F. Supp. 2d
`
`1028, 1031-32 (C.D. Cal. 2013). Here, no hearings have been held. Indeed, the only substantive
`
`filings thus far have been Clover’s Motion to Dismiss, which this Court has not yet ruled on, and
`
`Clover’s Motion to Transfer, for which briefing is incomplete. See Dkt. 9, 18. Because the parties
`
`and the Court have not yet expended significant resources on this case, the second factor
`
`significantly favors a stay. See Xylon Licensing, 2022 WL 2078030, at *2.
`
`3.
`
`The PTAB’s Decisions Will Either Resolve this Case or Significantly Narrow
`the Issues Involved.
`
`The third and final factor also favors a stay because the PTAB’s final decisions are likely
`
`to resolve or, at minimum, significantly narrow the parties’ disputes. In both Xylon Licensing and
`
`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 14 of 16
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`Sonrai Memory, this Court emphasized that the potential of the inter partes review to simplify the
`
`issues is the “most important factor bearing on whether to grant a stay.” Xylon Licensing, 2022
`
`WL 2078030, at *3 (quoting NFC Tech., 2015 WL 1069111, at *4); Sonrai Memory, 2022 WL
`
`3108818, at *3 (“This is the most important factor in the stay analysis.” (internal quotation marks
`
`omitted)). “Under this factor, the Court will typically weigh: the scope of estoppel the movant is
`
`bound by; and the strength of the relevant IPR petition in the context of the asserted claims. As a
`
`general matter, the PTAB’s suggestion that an IPR petition contains strong grounds for
`
`invalidating all the asserted claims, combined with the movant’s acceptance of a broad estoppel,
`
`suggests that a stay would simplify issues.” Sonrai Memory, 2022 WL 3108818, at *3.
`
`Plaintiff's complaint raises the same Asserted Patents and Claims that are at issue in the
`
`Lightspeed IPRs, which Clover is moving to join, and the Clover IPRs. Compare Dkt. 1, with Exs.
`
`A-1, A-2, A-3, A-4, A-6, A-7. Thus, resolution of the pending IPR proceedings will inevitably
`
`simplify the issues before this Court. The Lightspeed/Clover petitions for IPR raise multiple
`
`grounds of invalidity for each Asserted Claim, and—in the Lightspeed IPR proceedings—the
`
`PTAB instituted on multiple distinct grounds, finding a reasonable likelihood that the Asserted
`
`Claims of the Asserted Patents are unpatentable. See A-1, A-2, A-3. As this Court has concluded
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`before, there is thus a “good chance” that, in less than a year, “the PTAB will find the asserted
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`claims unpatentable” in its final written decisions. Sonrai Memory, 2022 WL 3108818, at *5. If it
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`does so, Plaintiff’s claims will be disposed of entirely, and even a partial invalidation of the
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`Asserted Claims will narrow the claims left to litigate in this case. Either way, this Court has held
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`that such circumstances favor a stay. Id.
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`Conversely, in the unlikely event that all of the Asserted Claims survive the IPRs—and
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`assuming the PTAB joins the Clover/Lightspeed IPRs—Clover, as a petitioner, will be subject to
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`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 15 of 16
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`the full scope of estoppel under 35 U.S.C. § 315(e). If the proceedings are not joined, Clover agrees
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`to remain estopped under § 315(e), as if it were a petitioner in the Lightspeed IPRs. Ex. A. This is
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`a “fairly broad estoppel” that this Court has repeatedly ruled justifies a stay. Sonrai Memory, 2022
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`WL 3108818, at *3; see Kirsch Research & Dev., LLC v. IKO Indus., Inc., No. 6:20-cv-00317-
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`ADA, 2021 WL 4555610 (W.D. Tex. Oct. 5, 2021) (same). Due to the impact of estoppel, the IPR
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`proceedings will necessarily and substantially simplify the issues before this Court.
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`Granting a stay will therefore prevent wasteful, continued litigation of claims and issues
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`that will be resolved by the PTAB’s decisions. See Kirsch, 2021 WL 4555610, at *3 (granting stay
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`pending resolution of the related ITC proceeding and/or IPR of the patent-in-suit where “the
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`simplification-of-issues factor overwhelms the other two factors”); accord Tarco Specialty Prods.,
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`2021 WL 4555804, at *2. The third and most important factor therefore also favors a stay of this
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`litigation.
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`IV. CONCLUSION
`This case is in its infancy, and a stay pending the PTAB’s decisions will not prejudice
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`Plaintiff. Instead, the PTAB’s decisions will significantly impact, if not resolve, the issues left to
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`litigate in this Court. Because a stay pending the PTAB’s decisions will conserve party and judicial
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`resources, the Court should grant this Motion.
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`Dated: December 5, 2022
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`Respectfully submitted,
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`/s/ J. Stephen Ravel
`J. Stephen Ravel (Texas Bar No. 16584975)
`Kelly Ransom (Texas Bar No. 24109427)
`KELLY HART & HALLMAN LLP
`303 Colorado, Suite 2000
`Austin, Texas 78701
`Tel: (512) 495-6429
`steve.ravel@kellyhart.com
`kelly.ransom@kellyhart.com
`
`
`

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`Case 6:22-cv-00634-ADA-DTG Document 22 Filed 12/05/22 Page 16 of 16
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`and
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`Caitlyn Hubbard (Texas Bar No. 24097853)
`KELLY HART & HALLMAN LLP
`201 Main Street, Suite 2500
`Fort Worth, Texas 76102
`Tel: (817) 332-2500
`caitlyn.hubbard@kellyhart.com
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`Attorneys for Clover Network, LLC
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`CERTIFICATE OF CONFERENCE
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`I certify that I contacted counsel for Plaintiff CloudofChange, LLC and asked whether
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`Plaintiff opposes this Motion. Plaintiff’s counsel has acknowledged receipt of the request but has
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`not responded. Accordingly, the issue is presented to the Court for resolution.
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`/s/ J. Stephen Ravel
`J. Stephen Ravel
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record are being served with a copy of the foregoing
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`document via the Court’s CM/ECF system on December 5, 2022.
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`/s/ J. Stephen Ravel
`J. Stephen Ravel
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`