Case 2:12-cv-02833-JPM-tmp Document 25 Filed 01/10/13 Page 1 of 8 PageID 118
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`
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`Civ. A. No. 2:12-cv-02833-JPM-tmp
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`B.E. TECHNOLOGY, L.L.C.
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`PLAINTIFF
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`
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`v.
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`PEOPLE MEDIA, INC.,
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`
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`DEFENDANT.
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`PATENT SCHEDULING CONFERENCE NOTICE
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`Pursuant to Local Patent Rule 2.1(a), Plaintiff B.E. Technology, L.L.C. (“B.E.”) and
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`Defendant People Media, Inc. (“People Media”) jointly submit this Patent Scheduling
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`Conference Notice informing the Court:
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`(1)
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`Scheduling for a Patent Scheduling Conference
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`B.E: B.E.’s position is this action is ripe to be scheduled for a Patent Scheduling
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`Conference. B.E. believes that the Court should hold a consolidated conference to address
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`consolidation of the related cases and other issues related to judicial economy and efficiency.
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`People Media: People Media believes this action is not ripe for a Patent Scheduling
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`Conference. People Media intends to file a motion to transfer this action within the next week.
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`Furthermore, all the defendants in the eighteen other actions filed by Plaintiff in this District
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`have filed or expressed an intent to file similar motions seeking transfer, with a majority seeking
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`transfer to the Northern District of California. In light of these transfer motions, People Media
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`respectfully submits that efficient judicial administration and the interests of all parties to the 19
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`cases filed by B.E. would be best served by first determining the judicial district(s) in which
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`Case 2:12-cv-02833-JPM-tmp Document 25 Filed 01/10/13 Page 2 of 8 PageID 119
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`these actions should be venued before proceeding with discovery or further scheduling of this
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`action.
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`Alternatively, should the Court not be inclined to defer all activity in the case until venue
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`is determined, People Media submits that an initial case management conference, comprising
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`only counsel for the parties, be held before this case or the other 18 cases are deemed ripe for a
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`full Patent Scheduling Conference under LPR2.1(b). People Media submits that such an initial
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`management conference is authorized under Fed. R. Civ. P. 16(a)(1)-(3) and subject to the
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`Court’s discretion for purposes of case management and efficiency.
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`While People Media does not believe the cases should be consolidated or even conducted
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`concurrently in all respects, there may be certain elements of the cases in which Plaintiff asserts
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`the ’314 Patent where the actions required of the parties, or to be addressed by the Court, would
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`be more efficient, and not vulnerable to additional confusion, if conducted concurrently. For
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`example, holding an initial case management conference jointly among the 19 cases would
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`provide the opportunity to discuss whether a Joint Patent Scheduling Conference would be
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`beneficial or efficient (in light of the number of parties and the differences between the accused
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`instrumentalities and the asserted patents) if and when such time for a Patent Scheduling
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`Conference should arise. Second, it would provide the opportunity to discuss whether other
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`portions of these 19 cases should be coordinated, such as a joint claim construction hearing,
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`depositions or other discovery. As a result of unopposed motions filed by the defendants in each
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`of the 19 cases, December 31, 2012 was fixed as a uniform date for the “Responsive Pleading”
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`as defined in Local Patent Rule (“LPR”) 1.3 (answer or Rule 12 motion) across all of the 19
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`cases except one. Because many of the requirements in the Local Patent Rules are based on this
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`date, these 19 cases now share virtually identical deadlines under the Local Patent Rules. An
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`Case 2:12-cv-02833-JPM-tmp Document 25 Filed 01/10/13 Page 3 of 8 PageID 120
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`initial multi-case management conference would provide an opportunity to fully discuss what
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`similarities and differences in the cases may permit, or interfere with, the setting of parallel
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`schedules.
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`(2) Modifications to the Local Patent Rules
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`B.E.: B.E.’s position is this action should be consolidated with the other B.E. actions
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`pending before this Court for consolidated claim construction proceedings and a trial on
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`invalidity and unenforceability of the patents-in-suit1 and that no modifications to the deadlines
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`set by the Patent Local Rules are necessary, beyond any minor modifications necessary to
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`synchronize the actions.
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`People Media: As set forth above, People Media agrees that some level of coordination
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`among the cases in which Plaintiff asserts the ’314 Patent would serve the interests of judicial
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`economy. Additionally, People Media believes the cases against People Media and Match.com
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`(2:12-cv-02834-JPM) should be consolidated for pre-trial related issues and trial. People Media
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`uses certain of the accused technology that Match.com uses, and People Media is a wholly-
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`owned subsidiary of Match.com, Inc. People Media does not, however, believe this case should
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`be consolidated with any of the 17 other patent infringement actions filed by B.E. in this Court,
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`and People Media notes that B.E.’s position regarding consolidation should be raised by motion
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`with an opportunity for full briefing on the merits.
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`1
`B.E. Technology, L.L.C. v. Facebook, Inc., 2:12-cv-02769 JPM-tmp; B.E. Technology,
`L.L.C. v. Groupon, Inc., 2:12-cv-02781 JPM-tmp; B.E. Technology, L.L.C. v. Match.com L.L.C.,
`2:12-cv-02834 JPM-tmp; B.E. Technology, L.L.C. v. People Media, Inc., 2:12-cv-02833 JPM-
`tmp; B.E. Technology, L.L.C. v. LinkedIn Corporation, 2:12-cv-02772 JPM-tmp; B.E.
`Technology, L.L.C. v. Spark Networks, Inc., 2:12-cv-02832 JPM-tmp; B.E. Technology, L.L.C. v.
`Twitter, Inc., 2:12-cv-02783 JPM-tmp; B.E. Technology, L.L.C. v. Google Inc., 2:12-cv-02830
`JPM-tmp; B.E. Technology, L.L.C. v. Microsoft Corporation, 2:12-cv-02829 JPM-tmp; B.E.
`Technology, L.L.C. v. Apple Inc., 2:12-cv-02831 JPM-tmp.
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`Case 2:12-cv-02833-JPM-tmp Document 25 Filed 01/10/13 Page 4 of 8 PageID 121
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`As discussed above, People Media respectfully requests that the Court address People
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`Media’s transfer motion before proceeding with a Patent Scheduling Conference and that the
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`Court suspend all other procedures, deadlines and filings called for in the Local Patent Rules
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`until such motion is determined. If People Media’s transfer motion is granted, the parties will be
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`subject to a different case management order and schedule. Furthermore, People Media submits
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`that this approach would minimize any negative impact on judicial economy by helping avoid
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`duplication of effort between this Court and a transferee venue.
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`Should the Court suspend all procedures and filings called for in the Local Patent Rules
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`pending resolution of the venue issue, People Media requests that the deadline to serve Initial
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`Non-Infringement Contentions pursuant to LPR 3.3 be rescheduled from 28 days after service of
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`the Initial Infringement Contentions to 90 days after the Responsive Pleading is filed. People
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`Media believes that such an extension may provide the Court sufficient time to rule on the
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`pending motion to transfer venue before the parties have to engage in substantial discovery
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`efforts without the Court having to enter a formal stay of discovery.
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`People Media also believes that the provisions of LPR 3.4, requiring the production of
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`documents relating to People Media’s non-infringement contentions, should be contingent upon
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`the entry of a suitable protective order governing the production of highly confidential technical
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`information, including source code. The patent-in-suit relates to a computerized method for
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`presenting advertisements to users. As such, People Media expects that the documents and
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`information contemplated by LPR 3.4 may require inspection of People Media’s proprietary
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`source code. Such source code comprises trade secrets and other highly confidential technical
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`information. Accordingly, a protective order is necessary to provide requirements that are
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`stricter than the default “attorneys-eyes-only” provisions of the LPRs.
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`Case 2:12-cv-02833-JPM-tmp Document 25 Filed 01/10/13 Page 5 of 8 PageID 122
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`People Media believes that the procedures of LPR 4.7 should be amended to provide for
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`the close of fact discovery sixty (60) (rather than thirty (30)) days following issuance of the
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`Court’s claim construction ruling. This case is likely to involve discovery from a number of
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`third-party witnesses knowledgeable about prior art. Depending on the Court’s claim
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`construction rulings, some prior art may become more relevant or additional prior art may be
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`located. People Media believes that a sixty (60) day window to close fact discovery following
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`the Court’s claim construction ruling is in the interest of justice to ensure an adequate time for
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`People Media to seek discovery of facts relevant to invalidity of the patent-in-suit.
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`Should LPR 4.7 be amended to provide for the close of fact discovery sixty (60) days
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`following issuance of the Court’s claim construction ruling, People Media believes that the
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`procedures of LPR 5.1(b) should be amended to provide for the initial expert witness disclosures
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`required by Rule 26 of the Federal Rules of Civil Procedure on issues for which it bears the
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`burden of proof 90 (rather than 60) days following the Court’s claim construction ruling. Should
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`LPR 4.7 be amended, extending the deadline for expert disclosures from 60 to 90 days following
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`issuance of the Court’s claim construction ruling will provide 30 days between the close of fact
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`discovery and expert discovery. This 30 day window is currently provided for under the LPR
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`and People Media believes the 30 day window should remain if LPR 4.7 is amended as
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`requested.
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`(3)
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`Case Management Issues
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`B.E.: B.E.’s position is this action should be consolidated, for claim construction,
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`discovery, and trial on issues of invalidity and unenforceability, with all of the other patent
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`infringement actions filed by B.E. in this Court involving the same patents at issue. B.E.
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`Case 2:12-cv-02833-JPM-tmp Document 25 Filed 01/10/13 Page 6 of 8 PageID 123
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`believes that there are no other case management issues that would impact any party’s ability to
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`conform to the Local Patent Rules.
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`People Media: People Media believes that some level of coordination among the cases
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`may be appropriate, as set forth above, but objects to general consolidation. Should the Court
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`consider consolidation, People Media respectfully requests that the parties be allowed the
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`opportunity to fully brief this issue and request a hearing. People Media believes there may be
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`other case management issues that could arise during the course of this litigation and reserves its
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`right to address those issues at the appropriate times.
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`Dated: January 10, 2013
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`Respectfully submitted,
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`
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`s/Craig R. Kaufman
`Robert E. Freitas (CA Bar No. 80948)
`Craig R. Kaufman (CA Bar No. 159458)
`James Lin (CA Bar No. 241472)
`Qudus B. Olaniran (CA Bar No. 267838)
`FREITAS TSENG & KAUFMAN LLP
`100 Marine Parkway, Suite 200
`Redwood Shores, CA 94065
`Telephone: (650) 593-6300
`Facsimile: (650) 593-6301
`rfreitas@ftklaw.com
`ckaufman@ftklaw.com
`jlin@ftklaw.com
`qolaniran@ftklaw.com
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`Richard M. Carter (TN B.P.R. #7285)
`Adam C. Simpson (TN B.P.R. #24705)
`MARTIN, TATE, MORROW & MARSTON, P.C.
`6410 Poplar Avenue, Suite 1000
`Memphis, TN 38119-4839
`Telephone: (901) 522-9000
`Facsimile: (901) 527-3746
`rcarter@martintate.com
`asimpson@martintate.com
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`Attorneys for Plaintiff
`B.E. Technology, L.L.C.
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` PATENT SCHEDULING CONFERENCE NOTICE
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`Case 2:12-cv-02833-JPM-tmp Document 25 Filed 01/10/13 Page 7 of 8 PageID 124
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`Dated: January 10, 2013
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`Respectfully submitted,
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`s/Jonathan D. Rose (per email consent dated 1/10/13)
`Jonathan D. Rose, BPR# 20967
`BRADLEY ARANT BOULT CUMMINGS LLP
`1600 Division Street, Suite 700
`Nashville, Tennessee 37203
`(615) 252-2308
`jrose@babc.com
`
`OF COUNSEL (motions for admission
`pro hac vice pending):
`
`Steven G. Schortgen
`steve.schortgen@klgates.com
`Jennifer Klein Ayers
`jennifer.ayers@klgates.com
`K&L GATES LLP
`1717 Main Street, Suite 2800
`Dallas, TX 75201
`(214) 939-5500
`
`OF COUNSEL (motions for admission
`pro hac vice pending):
`
`Sanjay K. Murthy
`sanjay.murthy@klgates.com
`Christopher E. Hanba
`christopher.hanba@klgates.com
`K&L GATES LLP
`70 W. Madison Street, Suite 3100
`Chicago, Illinois 60602-4207
`(312) 372-1121
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`Attorneys for Defendant People Media L.L.C.
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`Case 2:12-cv-02833-JPM-tmp Document 25 Filed 01/10/13 Page 8 of 8 PageID 125
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`CERTIFICATE OF SERVICE
`I hereby certify that on this 10th day of January, 2013, a copy of the foregoing was
`filed through the Court’s CM/ECF system.
`
`Jonathan D. Rose
`BRADLEY ARANT BOULT CUMMINGS LLP
`1600 Division Street, Suite 700
`Nashville, Tennessee 37203
`Tel: (615) 252-2308
`jrose@babc.com
`
`Steven G. Schortgen
`Jennifer Klein Ayers
`K&L GATES LLP
`1717 Main Street, Suite 2800
`Dallas, TX 75201
`Tel: (214) 939-5500
`steve.schortgen@klgates.com
`jennifer.ayers@klgates.com
`
`Sanjay K. Murthy
`Christopher E. Hanba
`K&L GATES LLP
`70 W. Madison Street, Suite 3100
`Chicago, Illinois 60602-4207
`Tel: (312) 372-1121
`sanjay.murthy@klgates.com
`christopher.hanba@klgates.com
`
`
`s/Craig R. Kaufman
`Craig R. Kaufman
`Attorney for Plaintiff
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