Case 1:23-cv-01212-ADA-DTG Document 178 Filed 11/20/23 Page 1 of 7
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`QUANTUM IMAGING LLC,
`
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`Plaintiff,
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`CASE NO.: 1:23-CV-01212-ADA-DTG
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`JURY TRIAL DEMANDED
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`
`§
`§
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`§
`§
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`v.
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`SONY GROUP CORPORATION; SONY
`CORPORATION OF AMERICA; SONY
`INTERACTIVE ENTERTAINMENT
`INC.; SONY INTERACTIVE
`ENTERTAINMENT LLC; AND
`BLUEPOINT GAMES, INC.,
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`
`
`Defendants.
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`MOTION FOR AMENDED SCHEDULING ORDER WITH COMPETING PROPOSALS
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`Pursuant to the Court’s November 13, 2023, order, Plaintiff Quantum Imaging, LLC, and
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`Defendants Sony Interactive Entertainment LLC, Sony Interactive Entertainment Inc., and
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`Bluepoint Games, Inc. (hereinafter “the Parties’) met and conferred on November 20, 2023,
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`regarding amending the case schedule. The parties were unable to reach agreement on an amended
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`schedule, and thus submit their competing proposals as follows.
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`Plaintiff’s argument for its proposal [500 words]:
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`The Court granted Quantum’s Motion for Extension (Dkt.147). Therein, Quantum
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`requested an extension of all deadlines beginning with the deadline to serve Final Contentions.
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`Quantum specifically argued that the extension was “for the parties to (1) finalize their
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`infringement and invalidity contentions [and] narrow the asserted claims and prior art references.”
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`Given that the Court granted Quantum’s Motion which explicitly requested an extension of the
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`deadline to serve final contentions and narrow claims/references, these dates should be extended.
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`Case 1:23-cv-01212-ADA-DTG Document 178 Filed 11/20/23 Page 2 of 7
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`Quantum needed the Markman order to finalize its Infringement Contentions. Defendants
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`simultaneously call Quantum’s Contentions incomprehensible and say they cannot be
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`supplemented. Neither party will be prejudiced if these deadlines are extended, but Quantum will
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`be if the deadlines are not moved to at least live dates.
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`For dates post-close of Fact Discovery, Quantum provides dates based on a simple
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`calculation. If the event is set by the OGP relative to the trial date, that calculation is used. For
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`example, the OGP requires the parties “jointly email the Court’s law clerk to confirm pretrial” at
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`8-weeks pre-trial. This is June 10, 2024. Defendants move this date back 19-days to May 22.
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`If the event is set by the OGP relative to the Markman date, the calculation is not as
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`simple because dates based on the October 10 hearing would often be past the August 5 trial. For
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`example, the OGP closes Fact Discovery 30-weeks post-Markman. This would be May 7 – only
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`three months pre-trial. Therefore, Quantum works backward using dates relative to August 5.
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`Because the OGP sets trial 52-weeks post-Markman and sets Fact Discovery Close at 30-weeks
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`post-Markman, the correct date should be 22 weeks before trial (52 minus 30), or March 4, 2024,
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`as Quantum proposes. Defendants push this back 35-days earlier.
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`For dates close to the October 10 Markman, the Markman date is more important than trial.
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`For example, the OGP sets the Final Contentions deadline for 8-weeks post-Markman. Using the
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`calculation, trial is 52-weeks after Markman and Final Contentions are 8-weeks post-Markman, so
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`this should be 44-weeks before trial, or October 2, 2023 – before the Markman hearing took
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`place. Because Markman is essential to Final Contentions, Quantum has used the OGP date of 8
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`weeks post-Markman (December 5). Similarly, the Deadline to Amend Pleadings per the OGP is
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`16-weeks after Markman, which would be January 30, 2024. Defendants cling to the date from the
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`old schedule even though the Court’s Markman decision was issued only one month ago.
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`Case 1:23-cv-01212-ADA-DTG Document 178 Filed 11/20/23 Page 3 of 7
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`Similarly, Defendants appear to remove the first required meet/confer to streamline the case
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`completely and insist that the parties somehow meet/confer in the past.
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`Lastly, Quantum’s Motion (Dkt.147) proposed a June 2024 trial date. Given that the Court
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`later set trial for August 2024, the additional two months should be used in the schedule, rather
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`than create needless gaps – as Defendants propose – closer to trial at the expense of concluding
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`discovery earlier than the OGP prescribes. This is neither efficient, nor reasonable.
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`Defendants’ argument for their proposal [500 words]:
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`Fact discovery in this case opened for all purposes more than one year ago on October 14,
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`2022. Dkt. 52. On October 13, 2023, the Plaintiff filed a motion to extend all deadlines in the case
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`schedule by two months.
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`At a November 13, 2023 hearing, the Court ordered an extension of “the current schedule
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`for both fact discovery and everything that falls thereafter.” Dkt. 173, Hearing Tr. a 42:13–18;
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`47:12–48:8. After the Court considered the parties’ briefing and their arguments at the hearing, it
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`ordered an extension of “the current schedule for both fact discovery and everything that falls
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`thereafter.” Hearing Tr. at 42:13–18; 47:12–48:8. The Court gave a new trial date of August 5,
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`2024, and ordered the parties to “work backwards” from that date to come up with a new schedule.
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`See Hearing Tr. at 43:9–16.
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`Defendants’ proposal follows the Court’s orders. First, Defendants’ proposal provides new
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`dates for “fact discovery and everything that falls thereafter.” Second, Defendants’ proposal
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`“work[s] backwards” from the trial date of August 5, 2024, and restores the periods between the
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`various deadlines as set forth in the original scheduling order, before they were compressed by
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`multiple extensions. See Dkt. 64; Dkt. 87; Hearing Tr. at 43:13–16. Furthermore, Defendants’
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`proposal largely adopts the deadlines originally proposed by Plaintiff. See Dkt. 147-1.
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`Case 1:23-cv-01212-ADA-DTG Document 178 Filed 11/20/23 Page 4 of 7
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`Plaintiff’s proposal fails to comply with the Court’s orders. The Court’s order did not
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`contemplate reviving any deadlines that fell before the original close of fact discovery on
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`November 29, 2023. These deadlines which have already passed include specifically:
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`•
`•
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`•
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`Deadline to amend pleadings (7/28/2023);
`Deadline to serve Final Infringement and Invalidity Contentions (10/20/2023);
`and
`Deadline for the first of two meet and confers to significantly narrow claims and
`defenses (11/1/2023).
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`See Dkt. 87. Plaintiff intentionally ignored these deadlines and purposefully did not amend its
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`pleadings, serve Final Infringement Contentions, or meet and confer to narrow the claims. The
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`most significant of these is the deadline to serve Final Infringement Contentions that already
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`passed. See Dkt. 87. Plaintiff’s proposal is contrary to the Court’s order and prejudicial to
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`Defendants, which timely submitted their Final Invalidity Contentions on the deadline as originally
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`ordered by the Court. In particular, Defendants would be prejudiced if Plaintiff gets to decide for
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`itself which deadlines of the Court are binding upon it, and are prejudiced by the lack of reciprocal
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`exchange of final contentions if Plaintiff is allowed a do-over for the contentions that it failed to
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`timely serve. Plaintiff’s proposal effectively grants itself the power to amend its Final Contentions
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`without showing good cause and without seeking leave of the Court.
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`Plaintiff’s proposal also grants itself a significant extension of fact discovery, adding more
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`than a month to the two months that it initially asked for, see Dkt. 147-1, while at the same time
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`needlessly compressing the deadlines in the lead-up to trial.
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`For the above reasons, the Court should reject Plaintiff’s proposal and adopt Defendants’
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`proposed Amended Scheduling Order.
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`Case 1:23-cv-01212-ADA-DTG Document 178 Filed 11/20/23 Page 5 of 7
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`Deadlines in Dkt.
`Plaintiff’s
`87
`Proposed Deadline
`October 10, 2023
`December 5, 2023
`October 20, 2023
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`January 30, 2024
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`July 28, 2023
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`February 5, 2024
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`November 1, 2023
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`Plaintiff’s
`Proposed Deadline
`March 4, 2024
`March 11, 2024
`April 8, 2024
`April 29, 2024
`May 6, 2024
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`Defendants’
`Proposed Deadline
`January 29, 2024
`February 6, 2024
`March 11, 2024
`April 5, 2024
`April 12, 2024
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`May 13, 2024
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`April 19, 2024
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`Item
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`Markman Hearing
`Deadline to serve Final Infringement and
`Invalidity Contentions. After this deadline,
`leave of Court is required for any amendment to
`infringement or invalidity contentions. This
`deadline does not relieve the parties of their
`obligation to seasonably amend if new
`information is identified after initial
`contentions.
`Deadline to amend pleadings. A motion is not
`required unless the amendment adds patents
`or patent claims. (Note: This includes
`amendments in response to a 12(c) motion.)
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`Deadline for the first of two meet and confers
`to discuss significantly narrowing the number
`of claims asserted and prior art references at
`issue. Unless the parties agree to the
`narrowing, they are ordered to contact the
`Court’s law clerk to arrange a teleconference
`with the Court to resolve the disputed issues.
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`Item
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`Close of Fact Discovery.
`Opening Expert Reports.
`Rebuttal Expert Reports.
`Close of Expert Discovery.
`Deadline for the second of two meet and confer
`to discuss narrowing the number of claims
`asserted and prior art references at issue to
`triable limits. To the extent it helps the parties
`determine these limits, the parties are
`encouraged to contact the Court’s Law Clerk
`for an estimate of the amount of trial time
`anticipated
`Dispositive motion deadline and Daubert
`motion deadline. See General Issues Note #7
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`5
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`Case 1:23-cv-01212-ADA-DTG Document 178 Filed 11/20/23 Page 6 of 7
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`regarding providing copies of the briefing to the
`Court and the technical advisor (if appointed).
`Serve Pretrial Disclosures (jury instructions,
`exhibits lists, witness lists, discovery and
`deposition designations).
`Serve objections to pretrial disclosures/rebuttal
`disclosures.
`Parties to jointly email the Court’s law clerk
`(See OGP at 1) to confirm their pretrial
`conference and trial dates.
`Serve objections to rebuttal disclosures; file
`Motions in limine.
`File Joint Pretrial Order and Pretrial
`Submissions (jury instructions, exhibits lists,
`witness lists, discovery and deposition
`designations); file oppositions to motions in
`limine.
`File Notice of Request for Daily Transcript or
`Real Time Reporting. If a daily transcript or
`real time reporting of court proceedings is
`requested for trial, the party or parties making
`said request shall file a notice with the Court
`and email the Court Reporter, Kristie Davis at
`kmdaviscsr@yahoo.com. Deadline to meet and
`confer regarding remaining objections and
`disputes on motions in limine.
`File joint notice identifying remaining
`objections to pretrial disclosures and disputes
`on motions in limine.
`Deadline to meet and confer regarding
`remaining objections and disputes on motions
`in limine.
`Final Pretrial Conference. Held in person unless
`otherwise requested.
`Jury Selection/Trial.
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`May 27, 2024
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`May 3, 2026
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`June 10, 2024
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`May 17, 2024
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`June 10, 2024
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`May 22, 2024
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`June 17, 2024
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`May 29, 2024
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`June 17, 2024
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`June 5, 2024
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`July 1, 2024
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`June 12, 2024
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`July 10, 2024
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`June 21, 2024
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`July 8, 2024
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`June 12, 2024
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`July 15, 2024
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`July 10, 2024
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`August 5, 2024
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`Case 1:23-cv-01212-ADA-DTG Document 178 Filed 11/20/23 Page 7 of 7
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`November 20, 2023
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`Philip W. Woo (admitted pro hac vice)
`Jennifer Lantz (admitted pro hac vice)
`DUANE MORRIS LLP
`260 Homer Avenue, Suite 202
`Palo Alto, CA 94301-2777
`Tel: (650) 847 4150
`Fax: (650) 847 4151
`PWWoo@duanemorris.com
`JMLantz@duanemorris.com
`
`W. Andrew Liddell
`DUANE MORRIS LLP
`Las Cimas IV
`900 S. Capital of Texas Hwy, Suite 300
`Austin, TX 78746-5435
`Tel: (512) 277-2300
`Fax: (512) 277-2301
`WALiddell@duanemorris.com
`
`Sajid Saleem (admitted pro hac vice)
`DUANE MORRIS LLP
`1075 Peachtree Street NE, Suite 1700
`Atlanta, GA 30309-3929
`Tel: (404) 253 6900
`Fax: (404) 253 6901
`SSaleem@duanemorris.com
`
`Irfan Malani (admitted pro hac vice)
`DUANE MORRIS LLP
`190 South LaSalle Street, Suite 3700
`Chicago, IL 60603-3433
`Telephone: (312) 499-6708
`Facsimile: (312) 277-2999
`IMalani@duanemorris.com
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`Attorneys for Defendants
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` Respectfully submitted,
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`
` Erick S. Robinson
`Texas Bar No. 24039142
`Patrick M. Dunn
`Texas Bar No. 24125214
`SPENCER FANE LLP
`816 Congress Avenue, Suite 1200
`Austin, TX 78701
`Telephone: (713) 212-2638
`erobinson@spencerfane.com
`pdunn@spencerfane.com
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`Brian T. Bear (admitted pro hac vice)
`Missouri Bar No. 61957
`Kevin S. Tuttle (admitted pro hac vice)
`Missouri Bar No. 59320
`Spencer Fane LLP
`1000 Walnut Street, Suite 1400
`Kansas City, Missouri 64106
`Telephone: (816)474-8100
`bbear@spencerfane.com
`ktuttle@spencerfane.com
`
`Danielle J. Healey
`Texas Bar No. 9327980
`Brian Medich (Admitted W.D. Tex./
`D.C. Bar No. 1671486)
`Spencer Fane LLP
`3040 Post Oak Blvd, Suite 1300
`Houston, TX 77056
`Telephone: 713-212-2676
`Fax: 713-963-0859
`dhealey@spencerfane.com
`bmedich@spencerfane.com
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`Attorneys for Plaintiff
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`Case 1:23-cv-01212-ADA-DTG Document 178-1 Filed 11/20/23 Page 1 of 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`§
`§
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`§
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`§
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`§
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`§
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`CASE NO.: 1:23-CV-01212-ADA-DTG
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`JURY TRIAL DEMANDED
`
`QUANTUM IMAGING LLC,
`
`
`Plaintiff,
`
`
`v.
`
`SONY GROUP CORPORATION; SONY
`CORPORATION OF AMERICA; SONY
`INTERACTIVE ENTERTAINMENT
`INC.; SONY INTERACTIVE
`ENTERTAINMENT LLC; AND
`BLUEPOINT GAMES, INC.,
`
`
`
`Defendants.
`
`
`
`ORDER REGARDING THE PARTIES’ COMPETING PROPOSALS
`FOR A SECOND AMENDED SCHEDULING ORDER
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`Pursuant to the Court’s November 13, 2023 order, Plaintiff Quantum Imaging, LLC, and
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`Defendants Sony Interactive Entertainment LLC, Sony Interactive Entertainment Inc., and
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`Bluepoint Games, Inc. (hereinafter “the Parties’) met and conferred regarding amending the case
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`schedule and submitted competing schedules.
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`The Court adopts _____________________’s Proposed Deadlines and it is ORDERED
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`that these deadlines shall govern the schedule in this case.
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`SIGNED on November __, 2023.
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`____________________________________
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`DEREK T. GILLILAND
`UNITED STATES MAGISTRATE JUDGE
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