Case 5:15-cv-02008-EJD Document 95 Filed 05/06/16 Page 1 of 6
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`GEORGE A. RILEY (S.B. #118304)
`griley@omm.com
`LUANN L. SIMMONS (S.B. #203526)
`lsimmons@omm.com
`MELODY DRUMMOND HANSEN (S.B. #278786)
`mdrummondhansen@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, California 94111-3823
`Telephone:
`(415) 984-8700
`Facsimile:
`(415) 984-8701
`
`RYAN K. YAGURA (S.B. #197619)
`ryagura@omm.com
`XIN-YI ZHOU (S.B. #251969)
`vzhou@omm.com
`BRIAN M. COOK (S.B. #266181)
`bcook@omm.com
`KEVIN MURRAY (S.B. #275186)
`kmurray2@omm.com
`O’MELVENY & MYERS LLP
`400 South Hope Street
`Los Angeles, California 90071-2899
`Telephone:
`(213) 430-6000
`Facsimile:
`(213) 430-6407
`
`Attorneys for Defendant
`APPLE INC.
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE
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`Case No. 5:15-CV-02008-EJD
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`DEFENDANT’S UNOPPOSED
`MOTION TO CHANGE DATE OF
`HEARING ON MOTION TO STAY
`PENDING COMPLETION OF USPTO
`PROCEEDINGS (CIVIL L.R. 6-3);
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`SUPPORTING DECLARATION;
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`[PROPOSED] ORDER
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`Judge: Honorable Edward J. Davila
`Courtroom: 4
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`DEFENDANT’S UNOPPOSED ADMIN.
`MOT. TO CHANGE DATE
`5:15-CV-02008-EJD
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`OpenTV, Inc., Nagravision, SA, and Nagra
`France S.A.S.,
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`Plaintiffs,
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`Defendant.
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`v.
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`Apple Inc.,
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`Case 5:15-cv-02008-EJD Document 95 Filed 05/06/16 Page 2 of 6
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`I. UNOPPOSED MOTION TO CHANGE HEARING DATE ON MOTION TO STAY
`PENDING COMPLETION OF USPTO PROCEEDINGS (CIVIL L.R. 6-3)
`Defendant Apple Inc. respectfully makes this unopposed request to advance the hearing
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`date for Apple’s Motion to Stay Pending Completion of USPTO Proceedings (Dkt. No. 92, the
`“Motion to Stay”).1 In April and May of 2016, Apple filed petitions for inter partes review
`(“IPR”) or covered business method review (“CBM”) before the United States Patent and
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`Trademark Office (“USPTO”) for all remaining patents-in-suit. Apple then filed a Motion to Stay
`this action pending completion of the USPTO proceedings.2 Apple respectfully requests
`advancing the hearing date for Apple’s Motion to Stay from September 15, 2016 to June 9, 2016
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`(37 days after the Motion was filed). An earlier hearing date for the Motion to Stay has the
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`potential to conserve the Court’s and the parties’ time and resources, promote judicial economy,
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`and eliminate unnecessary litigation costs.
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`As explained in Apple’s Motion to Stay, the pending reviews by the USPTO will likely
`invalidate or alter the scope of the patents-in-suit.3 Given the time-consuming and burdensome
`claim construction, fact discovery, and expert discovery activities that the Court and parties must
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`undertake before September 15, Apple respectfully requests that the Court advance the hearing
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`date for Apple’s Motion to Stay. By resolving the Motion to Stay earlier, the Court can avoid the
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`unnecessary expenditures of time and resources by the Court, Magistrate Judge Cousins, who has
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`been assigned to the case for discovery and scheduling issues, and the parties.
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`Significant work on this case is scheduled to be completed before the currently-scheduled
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`hearing date for Apple’s Motion to Stay. The Court is expected to issue a Claim Construction
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`Order after the May 12, 2016 technology tutorial and claim construction hearing. Magistrate
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`Judge Cousins is scheduled to hear a discovery dispute regarding compliance with the patent local
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`1 On March 2, 2016, counsel for Apple (Luann Simmons) conferred with counsel for Plaintiffs
`(Robert McCauley), who confirmed that Plaintiffs do not oppose Apple’s request to advance the
`hearing date.
`2 A few days before Apple’s Tuesday, May 3, 2016 filing of the Motion to Stay, Apple’s counsel
`emailed the Court’s Deputy Clerk to reserve a hearing date, and was advised that the first
`available hearing date for the Motion was September 15, 2016.
`3 Further, Apple filed another petition for inter partes review on one of the three remaining
`patents-in-suit after the filing of the Motion to Stay. (See IPR2016-01004.)
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`DEFENDANTS UNOPPOSED ADMIN.
`MOT. TO CHANGE DATE
`5:15-CV-02008-EJD
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`- 1 -
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`Case 5:15-cv-02008-EJD Document 95 Filed 05/06/16 Page 3 of 6
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`rules on June 1, 2016. A trial setting conference and hearing on OpenTV’s Motion for Rule 54(b)
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`Certification are scheduled before this Court on July 21 and August 18, 2016, respectively. Fact
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`discovery is ongoing, and the current case schedule requires the parties to serve expert reports on
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`August 18 and September 15, 2016. (See Dkt. No. 58.) Thus, the Court and the parties are
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`scheduled to expend significant resources over the next four months, most of which could be
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`rendered unnecessary by an early resolution of Apple’s Motion to Stay.
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`II. CONCLUSION
`For the foregoing reasons, Apple respectfully requests that the Court advance the hearing
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`date on Apple’s Motion to Stay to June 9, 2016 (or as soon as permitted by the Court’s schedule).
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`Dated: May 6, 2016
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`O’MELVENY & MYERS LLP
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`By:
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`/s/ Luann L. Simmons
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`Attorneys for Defendant APPLE INC.
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`- 2 -
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`DEFENDANT’S UNOPPOSED ADMIN.
`MOT. TO CHANGE DATE
`5:15-CV-02008-EJD
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`Case 5:15-cv-02008-EJD Document 95 Filed 05/06/16 Page 4 of 6
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`SUPPORTING DECLARATION OF LUANN L. SIMMONS
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`I, Luann L. Simmons, declare:
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`1.
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`I am a partner with the law firm of O’Melveny & Myers LLP, counsel for
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`defendant Apple Inc. (“Apple”) in the above-captioned litigation.
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`2.
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`I submit this declaration in support of Apple’s Unopposed Motion to Change Date
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`of Hearing on Motion to Stay Pending Completion of USPTO Proceedings (Civil L.R. 6-3). I
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`have personal knowledge of the facts set forth in this declaration and, if called to testify as a
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`witness, could and would do so competently.
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`3.
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`The factual statements included in the above Motion to advance the hearing date
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`are true, including the fact that counsel for Plaintiffs advised that Plaintiffs do not oppose this
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`motion to change time.
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`4.
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`The requested time modification will not affect any date set by the Court in this
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`matter.
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`5.
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`The previous time modifications in this case made pursuant to the listed
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`Stipulations, Court Orders, and Clerk’s Notices are as follows:
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`• Clerk’s Notice of Impending Reassignment to a U.S. District Court Judge
`vacating hearing dates scheduled before magistrate judge (Dkt. No. 16);
`• Order of Recusal vacating all pending dates of motions, pretrial conferences
`and trial (Dkt. No. 18);
`• Order assigning case to the Honorable Edward J. Davila vacating dates
`presently scheduled (Dkt. No. 19);
`• Joint Stipulation to Extend Time for Apple Inc. to Respond to Complaint to
`June 26, 2015 (Dkt. No. 22);
`• Clerk’s Notice Resetting Case Management Conference Following
`Reassignment from Magistrate Judge resetting due date for Case Management
`Statement to September 10, 2015, resetting Case Management Conference to
`September 17, 2015, and adjusting any deadlines associated with the Initial
`Case Management Conference accordingly (Dkt. No. 32);
`• Order (Dkt. No. 46) granting Joint Stipulation Regarding Briefing Schedule for
`Apple’s Motion to Dismiss resetting the due date for OpenTV’s opposition to
`Apple’s motion to July 17, 2015, and resetting Apple’s reply to OpenTV’s
`opposition to July 29, 2015 (Dkt. No. 44); and
`• ADR Phone Conference Re-Scheduling Notice resetting ADR Phone
`Conference to October 27, 2015 (Dkt. No. 56).
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`I declare under penalty of perjury under the laws of the United States of America that the
`DEFENDANT’S UNOPPOSED ADMIN.
`MOT. TO CHANGE DATE
`5:15-CV-02008-EJD
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`Case 5:15-cv-02008-EJD Document 95 Filed 05/06/16 Page 5 of 6
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`foregoing is true and correct. Executed this 6th day of May, 2016, in San Francisco, California.
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` /s/ Luann L. Simmons
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`Luann L. Simmons
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`DEFENDANT’S UNOPPOSED ADMIN.
`MOT. TO CHANGE DATE
`5:15-CV-02008-EJD
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`Case 5:15-cv-02008-EJD Document 95 Filed 05/06/16 Page 6 of 6
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`[PROPOSED] ORDER
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`FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED that Defendant Apple, Inc.’s
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`Motion is GRANTED.
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`The hearing on the Defendant’s Motion to Stay Pending Completion of USPTO
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`Proceedings (Dkt. No. 92) is calendared for June 9, 2016, at 9:00 a.m.
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`IT IS SO ORDERED.
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`Dated: ____________________, 2016
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`__________________________________________
`Edward J. Davila
`United States District Court Judge
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`- 5 -
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`DEFENDANT’S UNOPPOSED ADMIN.
`MOT. TO CHANGE DATE
`5:15-CV-02008-EJD