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`Case 5:16-cv-00179-RWS Document 57 Filed 03/26/18 Page 1 of 5 PageID #: 963
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
` HITACHI MAXELL, LTD.,
`
`Plaintiff,
`Case No. 5:16-CV-00179-RWS
`
`v.
`
` ZTE CORPORATION and ZTE USA INC.,
`
`
`Defendants.
`
`DEFENDANT ZTE USA INC.’S RESPONSE IN OPPOSITION TO PLAINTIFF
`MAXELL, LTD.’S MOTION FOR PARTIAL SUMMARY JUDGMENT OF NO
`INVALIDITY UNDER 35 U.S.C. § 103 OF CLAIMS 1-7 OF U.S. PATENT NO. 6,408,193
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`§ § § § § § § § § § §
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`Case 5:16-cv-00179-RWS Document 57 Filed 03/26/18 Page 2 of 5 PageID #: 964
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`INTRODUCTION
`I.
`Defendant ZTE (USA) Inc. (“Defendant” or “ZTE”) respectfully submits this response in
`opposition to Plaintiff Hitachi Maxell, Ltd.’s (“Plaintiff” or “Maxell”) Motion for Partial
`Summary Judgement of No Invalidity under 35 U.S.C. §103 of Claims 1-7 of U.S. Patent No.
`6,408,193 (Dkt. No. 199.)
`RESPONSES TO THE STATEMENT OF ISSUES
`II.
`1. Should partial summary judgment of no invalidity be granted for an obviousness
`argument when an expert fails to address a limitation of the claims for that obviousness
`argument?
`Response: Is Maxell entitled to summary judgment on an issue for which there is no
`longer a case or controversy?
`III. RESPONSES TO THE STATEMENT OF UNDISPUTED MATERIAL FACTS
`1. In his expert report on invalidity, Dr. Zhi Ding opines that “Claims 1, 6, 7 [sic] are
`obvious in view of the AAPA to the ’193 Patent.” (Declaration of Bryan Nese in Support
`of Plaintiff Maxell, Ltd.’s Motion For Partial Summary Judgment of No Invalidity Under
`35 U.S.C. § 103 of Claims 1-7 of U.S. Patent No. 6,408,193 Dkt. No. 199 (“Nese Decl.”),
`Ex. A, ¶ 408.)
`Response: Undisputed.
`2. Claim 1 of the ’193 Patent recites “said controller includes a central processing unit and a
`memory” (“limitation 1(g)(ii)”). (Nese Decl., Ex. C, 11:21-22.)
`Response: Undisputed.
`3. Dr. Ding’s report does not show how the AAPA teaches “limitation 1(g)(ii)” of claim 1
`of the ’193 Patent. (See Nese Decl., Ex. A, 264-77.) His report fails to relate the AAPA to
`this limitation at all. See Id.
`1
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`Case 5:16-cv-00179-RWS Document 57 Filed 03/26/18 Page 3 of 5 PageID #: 965
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`Response: Disputed but now moot.
`4. Claim 7 of the ’193 Patent recites “wherein said transmitter includes a variable amplitude
`amplifier and a power amplifier, said power amplifier includes a maximum power
`detector, said controller includes a central processing unit and a memory, said controller
`controls said transmitter so that an open-loop power control is performed and then a
`closed-loop power control is performed according to said power control signal so as to
`control the transmitted power to converge into a range required by said cell-site station,
`said controller controls a gain of said variable amplitude amplifier using a function
`defining a relation between bias data and gain data stored in said memory, and said
`maximum power detector controls and output power of said power amplifier” (“limitation
`7(g)”). (Nese Decl., Ex. C, 12:34-47.)
`Response: Undisputed.
`5. Dr. Ding’s report does not show how the AAPA teaches “limitation 7(g)” of claim 7 of
`the ’193 Patent. (See Nese Decl., Ex. A, ¶¶ 345-74.) His report fails to relate the AAPA to
`this limitation at all. See Id.
`Response: Disputed but now moot.
`6. Claims 2-6 of the ’193 Patent each depend, directly or indirectly, from claim 1 of the
`’193 Patent. (Nese Decl., Ex. C, 11:32-12:7.)
`Response: Undisputed.
`IV. ARGUMENT
`In order to streamline issues for trial, ZTE is no longer asserting that claim 1-7 of the
`’193 patent are obvious in view of the AAPA to the ’193 Patent. (Nese Decl., Ex. A, ¶408.)
`Maxell’s motion for partial summary judgment seeks a dispositive judgment on an issue for
`which there is no longer a case or controversy, and Maxell cites to no case law holding that such
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`Case 5:16-cv-00179-RWS Document 57 Filed 03/26/18 Page 4 of 5 PageID #: 966
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`relief is appropriate. Case law in this District indicates that courts should not grant summary
`judgment on issues that are not to be presented at trial. See, e.g., VirnetX Inc. v. Apple Inc., 925
`F. Supp. 2d 816, 849 (E.D.Tex.2013) (“The Court encourages and requires the parties to narrow
`their case for trial. Accordingly, the Court will not penalize such attempts to narrow issues by
`entering judgment on issues not presented at trial.”).
`Maxell’s motion should be denied as moot.
`V.
`CONCLUSION
`For all the foregoing reasons, the Court should deny Maxell’s motion.
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`Respectfully submitted,
`PILLSBURY WINTHROP SHAW PITTMAN LLP
`Dated: March 26, 2018
`By: /s/ Nicole S. Cunningham
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`Callie A. Bjurstrom (CA Bar No. 137816)
`Steven A. Moore (CA Bar No. 232114)
`Nicole S. Cunningham (CA Bar No. 234390)
`Matthew R. Stephens (CA Bar No. 288223)
`501 West Broadway, Suite 1100
`San Diego, CA 92101
`Phone: (619) 234-5000
`Fax: (619) 236-1995
`Attorneys for Defendant
`ZTE (USA) Inc.
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`Case 5:16-cv-00179-RWS Document 57 Filed 03/26/18 Page 5 of 5 PageID #: 967
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing document was served upon
`counsel of record via CM/ECF and electronic mail, pursuant to the Federal Rules of Civil
`Procedure and the Local Rules for the Eastern District of Texas, on March 26, 2018.
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`/s/ Nicole S. Cunningham
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`Nicole S. Cunningham
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`4
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