`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`§
`
`§
`Case No. 6:22-cv-00697-ADA
`§
`
`JURY TRIAL DEMANDED
`§
`§
`
`§
`§
`§
`§
`§
`§
`
`
`Plaintiff,
`
`Defendant.
`
`
`RFCyber CORP.,
`
`
`
`
`v.
`
`
`VISA U.S.A. INC.,
`
`
`
`
`
`
`JOINT MOTION FOR ENTRY OF DISPUTED SCHEDULING ORDER
`
`Plaintiff RFCyber Corp. and Defendant Visa U.S.A. Inc. (collectively “Parties”) file this
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`Joint Motion for Entry of Disputed Scheduling Order.
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`RFCyber’s Position
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`RFCyber respectfully requests that the Court enter its default Scheduling Order calculated
`
`per Appendix A to the OGP, attached hereto as Exhibit 1. RFCyber’s proposal reflects a case
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`management conference date deemed to occur on May 15, 2023, based on the filing of the case
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`readiness status report, and includes a courtesy extension to the date for Visa’s invalidity
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`contentions from July 3, 2023 to July 21, 2023.
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`RFCyber maintains that the Court’s default order is appropriate for this action. RFCyber
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`understands that Visa does not oppose the substance of the schedule but opposes entry of any
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`scheduling order until its Motion to Stay Pending Inter Partes Review has been decided. But it is
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`Visa’s burden to show that it is entitled to a stay (it fails to do so), not RFCyber’s burden to show
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`that the case should proceed as a threshold matter. Visa’s request amounts to a preemptive stay of
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`litigation, which would be both premature and highly prejudicial to RFCyber. Moreover, Visa
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`
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`Case 6:22-cv-00697-ADA Document 26 Filed 06/16/23 Page 2 of 3
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`cannot even show that it is likely to prevail on its motion to stay – two of the four patents asserted
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`in this action are not subject to any requested or instituted petitions for inter partes review.
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`RFCyber respectfully submits that this action should proceed under the Court’s default
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`schedule, attached hereto as Exhibit 1.
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`Visa’s Position
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`The Court should delay entering a scheduling order given that in less than six weeks, the
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`PTAB is expected to issue final written decisions which will determine the validity of two patents
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`asserted in this action and inform claim construction and arguments the parties may make on two
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`other related patents. As outlined in Visa’s Motion to Stay pending Inter Partes Review (Dkt. 22),
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`RFCyber will not suffer any prejudice from this very modest delay of several weeks, whereas
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`moving forward with a scheduling order at this time would prove wasteful of both the parties’ and
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`the Court’s time and resources. The parties can and should avoid potentially unnecessary,
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`inconsistent, and duplicative invalidity contentions and claim construction mere days before the
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`PTAB is expected to issue a decision.
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`RFCyber has not presented any reason it cannot wait a mere six weeks to allow the parties
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`and the Court to benefit from the simplification of issues and claim construction analysis expected
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`from the IPR Proceedings. Visa respectfully requests that entry of a scheduling order be deferred
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`until a decision on Visa’s Motion to Stay, or a decision in the pending IPR Proceedings, expected
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`in July 2023.
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`Dated: June 16, 2023
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`
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`
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`Respectfully submitted,
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`/s/ Jacob S. Ostling
`Raymond W. Mort, III
`Texas Bar No. 00791308
`Email: raymort@austinlaw.com
`THE MORT LAW FIRM, PLLC
`100 Congress Avenue, Suite 2000
`
`/s/ James C. Yoon
`James C. Yoon
`(CA Bar No. 177155)
`jyoon@wsgr.com WILSON SONSINI
`GOODRICH & ROSATI, P.C.
`650 Page Mill Road
`
`2
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`
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`Case 6:22-cv-00697-ADA Document 26 Filed 06/16/23 Page 3 of 3
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`Austin, Texas 78701
`Tel/Fax: 512-865-7950
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`OF COUNSEL:
`Alfred R. Fabricant (pro hac vice to be filed)
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos (pro hac vice to be filed)
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III
`(pro hac vice to be filed)
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Richard Cowell (Pro Hac vice)
`NY Bar No. 4617759 Email:
`rcowell@fabricantllp.com
`Jacob Ostling (Pro Hac vice)
`NY Bar No. 5684824
`Email: jostling@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue,
`Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
`
`Attorneys For Plaintiff RFCyber Corp.
`
`
`
`Palo Alto, CA 94304-1050
`Telephone: (650) 493-9300
`Fax: (650) 493-6811
`
`Jamie Y. Otto
`(CA Bar No. 229323) (pro hac vice)
`jotto@wsgr.com
`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`633 West Fifth Street, Suite 1550
`Los Angeles, California 90071
`Telephone: (323) 210-2900
`Fax: (866) 974-7329
`
`Lucy Yen (pro hac vice)
`Cassie L. Black (pro hac vice)
`WILSON SONSINI GOODRICH & ROSATI
`1301 Avenue of the Americas, 40th Fl.
`New York, NY 10019
`(212) 999-5800 (telephone)
`(866) 974-7329 (facsimile)
`lyen@wsgr.com
`cblack@wsgr.com
`
`Attorneys for Defendant VISA U.S.A. Inc.
`
`3
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`
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