Case 6:21-cv-00984-ADA Document 106 Filed 10/19/22 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`JAWBONE INNOVATIONS, LLC,
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`Case No. 6:21-CV-00984-ADA
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`Plaintiff,
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`v.
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`APPLE INC.,
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`PATENT CASE
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`JURY TRIAL DEMANDED
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`Defendant.
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`JOINT MOTION TO ENTER AMENDED SCHEDULING ORDER
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`Pursuant to the Court’s Discovery and Scheduling Order (Dkt. 103), Plaintiff Jawbone
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`Innovations, LLC (“Jawbone”) and Defendant Apple Inc. (“Apple”) hereby jointly submit this
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`Motion to Enter Amended Scheduling Order for the above-captioned matter. The parties have
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`met and conferred in good faith, but were unable to reach an agreement about the case schedule.
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`A short exemplary statement from each party is included below.
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`Jawbone’s Statement.
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`As Apple explained to the Court in its Motion to Supplement the Record, based on the
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`Scheduling Order, “fact discovery will commence on July 28.” Dkt. 78 at 6; see also Dkt. 99 at
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`6. Indeed, both parties commenced fact discovery prior to the Court’s Discovery and Scheduling
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`Order. Accordingly, Jawbone understands that the Markman date in Dkt. 103 is July 27, 2022,
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`the date originally agreed-upon for the Markman before Apple’s transfer motion caused it to be
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`delayed. Jawbone’s Proposed Schedule sets deadlines based on that date. By contrast, Apple
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`arbitrarily proposes October 4, 2022, resulting in a December 2023 trial.
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`Utilizing July 27, 2022, as the basis for the Amended Schedule allows for the Parties to
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`adhere as closely as possible to the original schedule in this case. In Dkt. 103, the Court noted its
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`Case 6:21-cv-00984-ADA Document 106 Filed 10/19/22 Page 2 of 6
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`concerns with extending the schedule and stated “The Court will not allow a defendant to benefit
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`from delaying the case schedule and extend venue discovery by using an incompetent witness.”
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`Dkt. 103 at 12. Apple’s proposed schedule would allow it to benefit from delaying the case
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`schedule.
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`Apple’s only argument against Jawbone’s schedule is that certain deadlines, such as
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`serving final infringement and invalidity contentions, would already have passed under the
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`original schedule. To obviate this concern, Jawbone’s schedule agrees with Apple as to those
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`deadlines. Apple does not identify any issues with meeting those deadlines in Jawbone’s
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`schedule.
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`Accordingly, the Court should enter Jawbone’s proposed schedule.
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`Apple’s Statement.
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`The Court’s Discovery and Scheduling Order, issued on October 5, 2022, states that
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`“[f]ull fact discovery is now open.” Dkt. 103 at 13. Because the Court’s Exemplary Schedule
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`sets the opening of fact discovery and other deadlines immediately following the Markman
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`hearing, Apple proposes to use October 4 as the constructive Markman hearing date. Dkt. 103,
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`App’x A. Using this date will allow the parties to follow the post-Markman schedules and
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`deadlines provided in the Court’s Exemplary Schedule. The Court’s Exemplary Schedule notes
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`that “[a]ll deadlines hereafter follow the original Markman hearing date and do not change if the
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`Court delays the Markman hearing.” Id., App’x A, fn. 4. Here, the original Markman hearing
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`was scheduled for July 27, 2022 but was twice vacated. See Dkt. 23 (Scheduling Order).
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`However, using this date, as Jawbone proposes, results in deadlines that have already passed.
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`For instance, under the original schedule, Jawbone should have served its final infringement
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`Case 6:21-cv-00984-ADA Document 106 Filed 10/19/22 Page 3 of 6
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`contentions by September 21, 2022. To date, Jawbone has not served its final infringement
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`contentions. Nor has it filed a motion for leave to serve its final infringement contentions.
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`Apple’s proposal does not cause this confusion, as it appropriately follows the Court’s
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`orders. In its Discovery and Scheduling Order (Dkt. 103), the Court ordered the parties to enter a
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`schedule keyed off the Markman hearing, which at that point was scheduled for October 14,
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`2022 (Dkt. 96). The Order also stated that “full fact discovery is now open.” Dkt. 103 at 13
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`(emphasis added). The Court’s Exemplary Schedule sets fact discovery to open one day after the
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`Markman hearing, so Apple’s proposal contemplates a constructive Markman hearing date of
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`October 4, which is consistent with the Court’s Order given that the Court shortly afterward
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`vacated the October 14 Markman hearing date. Jawbone agrees with Apple’s proposal only with
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`respect to deadlines that would have already passed, while attempting to maintain the rest of the
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`schedule as set forth in the existing Scheduling Order. That approach is inconsistent with the
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`Court’s instructions and unreasonably compresses the remainder of the case schedule.
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`Apple’s proposed schedule would not cause any delay, as it is consistent with the Court’s
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`instructions. Moreover, Jawbone’s implication that Apple used “an incompetent witness” to
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`delay the schedule of this case is wrong and contradicts the record. The supplemental
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`declarations that Apple sought to introduce do not bring any new facts into the record. See Dkt.
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`78, 99. They merely confirm the correctness of Apple’s initial declaration (Dkt. 38-1), and thus
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`could not have caused any delays. Notably, Jawbone did not seek deposition from any corporate
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`witness from Apple or any of Apple’s declarants. Nor has Jawbone previously complained about
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`the competency of any Apple witness, including those that submitted declarations and that
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`Jawbone deposed during venue discovery.
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`Case 6:21-cv-00984-ADA Document 106 Filed 10/19/22 Page 4 of 6
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`The Court should therefore adopt Apple’s proposed schedule, which allows for full
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`compliance with the Court’s Exemplary Schedule.
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`Date: October 19, 2022
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`Respectfully submitted,
` /s/ Richard M. Cowell
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`Raymond W. Mort, III
`Texas State Bar No. 00791308
`Email: raymort@austinlaw.com
`THE MORT LAW FIRM, PLLC
`100 Congress Avenue, Suite 2000
`Austin, Texas 78701
`Tel/Fax: 512-865-7950
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`OF COUNSEL:
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`Alfred R. Fabricant (Admitted Pro Hac Vice)
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos (Admitted Pro Hac Vice)
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III (Admitted Pro Hac Vice)
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Richard M. Cowell (Admitted Pro Hac Vice)
`NY Bar No. 4617759
`Email: rcowell@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue,
`Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`ATTORNEYS FOR PLAINTIFF
`JAWBONE INNOVATIONS, LLC
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`Case 6:21-cv-00984-ADA Document 106 Filed 10/19/22 Page 5 of 6
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`/s/ Qiuyi Wu
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`J. Stephen Ravel
`Texas State Bar No. 16584975
`steve.ravel@kellyhart.com
`KELLY HART & HALLMAN LLP
`303 Colorado, Suite 2000
`Austin, Texas 78701
`Telephone: (512) 495-6429
`Facsimile: (512) 495-6401
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`Ricardo J. Bonilla
`Texas Bar No. 24082704
`rbonilla@fr.com
`FISH & RICHARDSON P.C.
`1717 Main Street, Suite 5000
`Dallas, TX 75201
`Telephone: (214) 747-5070
`Facsimile: (214) 747-2091
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`Benjamin C. Elacqua
`Texas Bar No. 24055443
`elacqua@fr.com
`FISH & RICHARDSON P.C.
`1221 McKinney Street, Suite 2800
`Houston, Texas 77010
`Telephone: (713) 654-5300
`Facsimile: (713) 652-0109
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`Betty H. Chen
`Texas Bar No. 24056720
`bchen@fr.com
`Katherine D. Prescott
`(admitted pro hac vice)
`CA Bar No. 215496
`prescott@fr.com
`Jeanel Sunga
`(admitted pro hac vice)
`sunga@fr.com
`FISH & RICHARDSON P.C.
`500 Arguello Street, Suite 400
`Redwood City, CA 94063
`Telephone: (650) 839-5067
`Facsimile: (650) 839-5071
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`Case 6:21-cv-00984-ADA Document 106 Filed 10/19/22 Page 6 of 6
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`Daniel R. Gopenko
`DC Bar No. 1018019
`gopenko@fr.com
`FISH & RICHARDSON P.C.
`1000 Maine Avenue, SW, Suite 1000
`Washington, DC 20024
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
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`Qiuyi Wu
`(admitted pro hac vice)
`MA Bar No. 704069
`qwu@fr.com
`FISH & RICHARDSON P.C.
`One Marina Park Drive
`Boston, MA 02210-1878
`Telephone: (617) 542-5070
`Facsimile: (617) 542-8906
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`ATTORNEYS FOR DEFENDANT APPLE INC.
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served on October 19, 2022, to all counsel of record who are deemed to have
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`consented to electronic service via the Court’s CM/ECF system.
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`/s/ Qiuyi Wu
`Qiuyi Wu
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`6
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