Case 5:19-cv-00036-RWS Document 105 Filed 10/22/19 Page 1 of 5 PageID #: 4757
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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` Civil Action No. 5:19-cv-00036-RWS
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`JURY TRIAL DEMANDED
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`MAXELL, LTD.,
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`Plaintiff,
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`vs.
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`APPLE INC.,
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`Defendant.
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`APPLE INC.’S STATEMENT OF NON-OPPOSITION TO MAXELL, LTD.’S MOTION
`FOR LEAVE TO SUPPLEMENT INFRINGEMENT CONTENTIONS TO ADD NEWLY
`RELEASED PRODUCTS (D.I. 96)
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`Defendant Apple Inc. (“Apple”) hereby respectfully gives notice that it does not oppose
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`Plaintiff Maxell, Ltd.’s (“Maxell’s”) Motion for Leave to Supplement Infringement Contentions
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`to Add Newly Released Products (D.I. 96).
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`While Apple does not oppose the relief requested by Maxell, Apple does object to Maxell’s
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`meritless accusation that Apple is improperly attempting to delay the case and obstruct any final
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`resolution on the merits. As Apple informed Maxell during the parties’ meet and confer and as set
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`forth in Apple’s Amended Motion to Transfer (D.I. 57) and Motion to Stay (D.I. 97), this case
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`should not be proceeding, much less expanding in scope, in this venue—this case should be
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`transferred to the Northern District of California pursuant to the mandatory forum selection clause
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`in an agreement that is directly related to the allegations and issues in this case and that expressly
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`designates the Northern District of California as the required venue for the parties’ disputes.
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`Case 5:19-cv-00036-RWS Document 105 Filed 10/22/19 Page 2 of 5 PageID #: 4758
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`Maxell’s reliance on pre-suit communications in its Complaint and its latest (false) assertion that
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`Apple has committed “years of willful infringement” are in conflict with its obligations under that
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`agreement as a successor-in-interest. See D.I. 96 at 1. Contrary to Maxell’s aspersions, Apple’s
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`position is far from “obstructionist”—Apple wants this case to be decided on the merits promptly,
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`efficiently, and in the venue for which it contracted for such disputes to be heard, and believes that
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`the interests of judicial economy would be best served by deciding the Motion to Transfer before
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`the Court or the parties expend additional resources litigating issues in this venue.
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`Notwithstanding the above, in light of the early stage of the case, the requirements of L.R.
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`26(a), and Apple’s desire to avoid duplication of resources, and with the understanding that these
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`claims properly belong in in the Northern District of California, Apple does not oppose Maxell’s
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`supplementation to add newly-released Apple products, as described in Maxell’s Motion for Leave
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`to supplement. See D.I. 96 at 1 (requesting leave only to add the following products: iPhones 11,
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`11 Pro, 11 Pro Max; Apple Watch Series 5; new iPad 10.2). Apple’s non-opposition does not
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`apply to any other supplementation included in Maxell’s Supplemental Infringement Contentions
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`served October 15, 2019, including supplementation relating to source code pursuant to P.R. 3-
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`1(g), as to which Apple reserves all rights to object and seek other appropriate relief.
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`Apple also points out that Maxell filed its Motion for Leave on October 7, 2019, before it
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`provided any proposed amendments to Apple to review. In its Motion, Maxell indicated that it
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`would not provide supplemental contentions to Apple until October 31, 2019—ten days after the
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`deadline for Apple’s response. See D.I. 96 at 2. Apple requested a reasonable extension to respond
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`to Maxell’s motion, which would allow Apple time to review Maxell’s supplemental infringement
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`contentions before responding. Maxell refused Apple’s reasonable request and instead served its
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`Supplemental Infringement Contentions on October 15, 2019. Maxell also refused a second
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`Case 5:19-cv-00036-RWS Document 105 Filed 10/22/19 Page 3 of 5 PageID #: 4759
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`request for additional time (in which Apple asked for a mere seven additional days) to review
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`Maxell’s supplemental contentions. As a result, Apple had only four business days to review more
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`than 7,500 pages of infringement claim charts. Nonetheless, based on Apple’s review of Maxell’s
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`supplemental contentions during that limited amount of time, in view of Maxell’s representation
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`in its motion that its supplementation to add newly released products does not “substantially alter
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`Maxell’s infringement theories as set forth in its initial contentions” (D.I. 96 at 3), and
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`notwithstanding Apple’s pending motions to transfer and stay, Apple now files this statement of
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`non-opposition.
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`October 22, 2019
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`/s/ Luann L. Simmons
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`Luann L. Simmons (Pro Hac Vice)
`lsimmons@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center
`28th Floor
`San Francisco, CA 94111
`Telephone: 415-984-8700
`Facsimile: 415-984-8701
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`Xin-Yi Zhou (Pro Hac Vice)
`vzhou@omm.com
`Anthony G. Beasley (TX #24093882)
`tbeasley@omm.com
`O’MELVENY & MYERS LLP
`400 S. Hope Street
`Los Angeles, CA 90071
`Telephone: 213-430-6000
`Facsimile: 213-430-6407
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`Laura Bayne Gore (Pro Hac Vice)
`lbayne@omm.com
`O’MELVENY & MYERS LLP
`Times Square Tower, 7 Times Square
`New York, NY 10036
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`Case 5:19-cv-00036-RWS Document 105 Filed 10/22/19 Page 4 of 5 PageID #: 4760
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`Telephone: 212-326-2000
`Facsimile: 212-326-2061
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`Melissa R. Smith (TX #24001351)
`melissa@gilliamsmithlaw.com
`GILLIAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
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`Attorneys for Defendant Apple Inc.
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`Case 5:19-cv-00036-RWS Document 105 Filed 10/22/19 Page 5 of 5 PageID #: 4761
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of this document via the Court's
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`CM/ECF system per Local Rule CV-5(a)(3) on October 22, 2019.
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`/s/ Melissa R. Smith
`Melissa R. Smith
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