Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 1 of 11
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`COOLEY LLP
`ATTORNEYS AT LAW
`PALO ALTO
`
`COOLEY LLP
`HEIDI L. KEEFE (178960)
`hkeefe@cooley.com
`MARK R. WEINSTEIN (193043)
`mweinstein@cooley.com
`PHILLIP E. MORTON (pro hac vice)
`pmorton@cooley.com
`COOLEY LLP
`3175 Hanover Street
`Palo Alto, CA 94304-1130
`Telephone:
`(650) 843-5000
`Facsimile:
`(650) 849-7400
`
`MICHAEL G. RHODES (116127)
`(rhodesmg@cooley.com)
`COOLEY LLP
`101 California Street, 5th Floor
`San Francisco, CA 94111
`Telephone: (415) 693-2000
`Facsimile: (415) 693-2222
`
`
`
`Attorneys for Defendant Facebook, Inc.
`
`
`BRADLEY W. CALDWELL (pro hac vice)
`bcaldwell@caldwellcc.com
`JASON D. CASSADY (pro hac vice)
`jcassady@caldwellcc.com
`JOHN AUSTIN CURRY (pro hac vice)
`acurry@caldwellcc.com
`WARREN J. MCCARTY, III (pro hac vice)
`wmccarty@caldwellcc.com
`CALDWELL CASSADY & CURRY
`2101 Cedar Springs Road, Suite 1000
`Dallas, Texas 75201
`Telephone: (214) 888-4848
`Facsimile: (214) 888-4849
`
`Christopher D. Banys (SBN 230038)
`Jennifer L. Gilbert (SBN 255820)
`cdb@banyspc.com
`jlg@banyspc.com
`BANYS, P.C.
`1032 Elwell Court, Suite 100
`Palo Alto, CA 94303
`Tel: (650) 308-8505
` Fax: (650) 353-2202
`
`Attorneys for Plaintiff Windy City
`Innovations, LLC
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`
`WINDY CITY INNOVATIONS, LLC
`Plaintiff,
`
`
`
`v.
`FACEBOOK, INC.,
`Defendant.
`
`
`
`
`
`Case Nos. 4:16-cv-01730-YGR
`
`JOINT CASE MANAGEMENT
`STATEMENT
`
`Date: February 12, 2018
`Time: 2:00 p.m.
`Dept.: Courtroom 1
`Judge: Honorable Yvonne Gonzalez Rogers
`Date Filed: July 18, 2016
`Trial Date: None Set
`
`Pursuant to Federal Rule of Civil Procedure 26(f), Civil Local Rule 16-9(a), Patent
`Local Rule 2-1, the Standing Order for All Judges of the Northern District of California –
`Contents of Joint Case Management Statement, and the Court’s January 24, 2018 Order
`Granting Plaintiff Windy City’s Motion to Lift Stay (Dkt. No. 92), the parties to the above-
`
`JOINT CASE MANAGEMENT CONFERENCE
`STATEMENT
`
`1.
`
` 4:16-CV-01729-YGR
` 4:16-CV-01730-YGR
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`

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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 2 of 11
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`titled action jointly submit this Case Management Statement and Proposed Order.
`1.
`Jurisdiction and Service.
` The Court has subject matter jurisdiction over this action.
` Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b) and (c) and/or 1400(b).
` No issues exist regarding personal jurisdiction or venue.
` All named parties have been served with no unresolved service issues.
`2.
`Procedural History and Facts.
`(a)
`Case Activity Since the Transfer to the Northern District of California.
`On April 6, 2016, this case was transferred from the Western District of North Carolina
`to the Northern District of California. (Dkt. No. 32.) On May 4, 2016, Facebook filed a motion
`seeking the identification of asserted claims in advance of Facebook’s June 3, 2016 statutory
`deadline for filing IPRs. (Dkt. No. 46.) On May 17, 2016, the Court denied Facebook’s
`motion, but in its Order stated that it would require the “preliminary election of asserted claims
`and prior art and employ a form of order modeled by the Federal Circuit.” (Dkt. No. 50.) On
`July 25, 2016, the Court conducted a Case Management Conference. The Court entered a Case
`Management Scheduling Order on August 2, 2016, which adopted the Federal Circuit
`Advisory Council’s Model Order Limiting Excess Patent Claims and Prior Art. (Dkt. No. 68.)
`The parties thereafter served and responded to discovery requests and Windy City
`began review of Facebook’s confidential source code. Pursuant to the Court’s Order (1) out
`of 830 claims, Windy City elected thirty-two (32) claims to pursue and served infringement
`contentions on October 19, 2016 and (2) Facebook served invalidity contentions and narrowed
`its prior art to forty (40) references on December 5, 2016.
`(b)
`The Stipulated Stay, PTAB Findings, and Order Lifting the Stay.
`Facebook and Microsoft collectively filed eleven petitions for inter partes review
`
`
`(“IPR”) of the patents-in-suit on June 3, 2016. By December 12, 2016, the PTAB instituted
`inter partes review on seven of the eleven petitions. The parties stipulated to stay the case
`pending the instituted IPR proceedings, which the Court ordered on December 28, 2016. (Dkt.
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`JOINT CASE MANAGEMENT CONFERENCE
`STATEMENT
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`2.
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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 3 of 11
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`
`
`8,407,356
`8,458,245
`8,473,552
`8,694,657
`
`None
`19, 22-25
`1, 4, 6, 8, 9, 18-58
`203, 209, 215, 221
`
`76). While the instituted IPR petitions were pending, Windy City and Microsoft reached a
`settlement and the Microsoft action was dismissed on April 21, 2017. (CV-01729 Dkt. 82).
`On December 6, 2017, the PTAB issued its Final Written Decisions on each of the IPRs
`instituted against the patents-in-suit. The results of the IPRs is summarized below:
`Patent
`Claims Found
`Claims Not Found
`Preliminary
`Unpatentable
`Unpatentable
`Elected Asserted
`Claims Not
`Found
`Unpatentable
`None
`19, 22-25
`None
`203, 209, 215, 221
`
`1-9, 12, 14-28, 31, 33-37
`1-15, 17, 18
`2, 3, 5, 7, 10-17, 59, 64
`189, 334, 342, 348, 465,
`477, 482, 487, 492, 580,
`584, 592
`Windy City moved to lift the stay on December 22, 2017. (Dkt. 83). The Court granted
`Windy City’s motion on January 24, 2018 (Dkt. 92) and set this case management conference
`for February 12, 2018.
`3.
`Legal Issues.1
`The principal disputed legal issues are:
` Whether Defendants directly or indirectly infringe any claim of the asserted patents;
` Construction of any disputed patent claim terms;
` Whether Windy City is entitled to damages, and if so, the amount;
` Whether any or all of the claims of the asserted patents are invalid;
` Whether any or all of the claims of the asserted patents are patent-ineligible;
` Whether this case is exceptional under 35 U.S.C. § 285; and
` Whether other appropriate forms of relief are due to either party, including monetary
`relief under 35 U.S.C. §284.
`
`
`
`1 Windy City does not agree that Facebook may challenge the validity or subject-matter
`eligibility of the patents-in-suit, and thus those legal issues are no longer in dispute in this action.
`To the extent Facebook pursues invalidity defenses, counterclaims, or otherwise challenges the
`validity of the patents-in-suit, Windy City reserves its right to seek appropriate relief (e.g., in a
`motion to strike and/or motion for summary judgment) as warranted by law, including statutory
`and common law estoppel.
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`JOINT CASE MANAGEMENT CONFERENCE
`STATEMENT
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`3.
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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 4 of 11
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`4.
`
`Motions and/or Pending Matters.
`(a) Motions
`There are no pending motions at this time.
`(b)
`Anticipated Motions
`Facebook believes that this case should be stayed while the Parties pursue appeals of
`the PTAB’s Final Written Decisions. Facebook may file a motion to renew the stay of this
`litigation pending appeal.
`Windy City intends to request leave to substitute claims.
`(c)
`Pending Matters
`On January 10, 2018, Facebook filed four Notices of Appeal to the U.S. Court of
`Appeals for the Federal Circuit appealing, among other issues, the PTAB’s finding that the
`nine remaining asserted claims were not unpatentable. Fed. Cir. Appeal Nos. 18-1400, -1401,
`-1402, -1403. All of Facebook’s appeals have been consolidated under Case No. 18-1400.
`To date, Windy City has not filed any notice of appeal. The deadline to file Notices of
`Appeal is February 7, 2018.
`5.
`Amendment of Pleadings, Addition of Parties, Etc.
`None at this time.
`6.
`Evidence Preservation.
`The parties have reviewed the Guidelines Relating to the Discovery of Electronically
`Stored Information (“ESI”). Additionally, the parties have discussed with their counsel and
`met and conferred at their F.R.C.P. 26(f) conference regarding reasonable and proportionate
`steps to preserve evidence relevant to the issues reasonably evident in this action. Each party
`has implemented a litigation hold with respect to ESI and hardcopy documents and media that
`is believed to be reasonably related to the claims and defenses in this action.
`
`7.
`Initial Disclosures.
`The parties served initial disclosures pursuant to Federal Rule of Civil Procedure
`26(a)(1) on July 18, 2016.
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`JOINT CASE MANAGEMENT CONFERENCE
`STATEMENT
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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 5 of 11
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`8.
`
`Discovery.
`(a)
`Discovery to Date
`Due to the stay pending Facebook’s IPR petitions, only minimal written discovery and
`document production has occurred to date and no depositions have been taken in this case.
`(b)
`Scope of anticipated discovery
`The parties anticipate that the scope of discovery will encompass the factual and legal
`issues identified in Sections 3 above, and the requested relief discussed in Section 11 below,
`including all related, ancillary, and subsidiary factual and legal issues and matters.
`(c)
`Report on Stipulated E-Discovery Order
`The parties have reviewed the Northern District of California’s Model Stipulation and
`Order Re: Discovery of Electronically Stored Information For Patent Litigation and the Court
`entered the parties’ stipulated ESI Order on August 16, 2016. See Dkt. 70.
`(d)
`Discovery Plan/Changes to Discovery Limitations
`The Court entered a case scheduling order on August 2, 2016 (Dkt. 68) setting forth
`discovery limitations in this matter. The parties ask that the Court to carry forward the
`discovery limitations as set forth in the § I of that Order.
`9.
`Class Actions.
`Not applicable.
`10.
`Related Pending Cases.
`None.
`11.
`Relief.
`Windy City’s Statement:
`Windy City seeks judgment that Defendants have infringed and continue to infringe
`the patents in-suit. Windy City seeks damages under 35 U.S.C. § 284, attorney fees under 35
`
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`U.S.C. § 285, and such relief at law and in equity as the Court may deem just and proper.
`Defendants’ Statement:
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`STATEMENT
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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 6 of 11
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`Facebook seeks a judgment that Facebook does not infringe any of the asserted claims
`of the patents-in-suit and that each of the asserted claims is invalid, patent-ineligible, and/or
`unenforceable. Facebook may also seek attorney’s fees under 35 U.S.C. 285, and such relief
`at law and in equity as the Court may deem just and proper.
`12.
`Settlement and ADR.
`The parties engaged in meditation on December 14, 2016 with the Hon. Edward Infante
`(Ret.) at JAMS in San Francisco. No resolution was reached at that time.
`13.
`Consent to Magistrate Judge.
`No party consented to proceeding before a magistrate judge.
`14. Other references.
`The parties do not believe that this case is suitable for reference to binding arbitration,
`a special master, or the Judicial Panel on Multidistrict Litigation.
`15.
`Narrowing of Issues.
`Windy City’s Statement:
`This case has already been significantly narrowed due to the results of the PTAB’s final
`written decisions finding that certain of Windy City’s claims are patentable and by establishing
`various estoppels against Facebook. Fifty-three of Windy City’s originally asserted claims
`survived Facebook’s IPR challenges, nine of which were among Windy City’s preliminary
`claim elections. Under the parties’ previously agreed framework for narrowing patent claims,
`“final” claim elections (to occur after the close of fact discovery) permits Windy City sixteen
`patent claims to bring to trial. Windy City expressly reserved its right to seek leave of the Court
`to add, delete, substitute, or otherwise amend this list of preliminary claims in light of the
`PTAB’s findings on October 19, 2016, before the PTAB instituted Facebook’s IPR petitions.
`Windy City expects to request leave to substitute claims on a very narrow basis, and for only
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`a small subset of patent claims (not to exceed sixteen total asserted claims) that were (i)
`originally asserted against Facebook, and (ii) that Facebook challenged at the PTAB but lost.
`Facebook’s Statement:
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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 7 of 11
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`Motion to Stay. First, Facebook believes that this case should remain stayed while the
`Parties pursue appeals of the PTAB’s Final Written Decisions. The results of the appeal could
`significantly impact this litigation and further narrow issues, including the elimination of the
`remaining asserted claims and additional statements that may be pertinent to claim
`construction. In view of the potential waste of party and judicial resources that unstaying this
`case may cause, Facebook may file a motion to renew the stay of this litigation pending appeal.
`Windy City’s Motion to Add Claims. Windy City’s plan to file a motion to substitute
`claims is not a “narrowing of issues,” but an expansion of the case because it would improperly
`add new claims with no good cause not previously asserted in this litigation. Windy City’s
`expansion proposal would lengthen this litigation, requiring the parties to start over with
`infringement and invalidity contentions for the claims that Windy City seeks to substitute.
`Windy City made its election with full knowledge of the IPRs and should remain held to that
`choice. Also, Windy City’s reference to the claims “that were . . . originally asserted against
`Facebook” in its statement above is unclear because Windy City has only asserted the 32 claims
`identified in the October 19, 2016 infringement contentions. To the extent Plaintiff is
`referencing the generic allegations to infringement of the four patents-in-suit in the complaint
`(which collectively include 830 claims), such a position would render meaningless the claim
`narrowing ordered by the Court earlier in this case.
`16.
`Expedited Schedule.
`The parties do not propose that this case proceed on an expedited schedule.
`17.
`Scheduling
`While Facebook believes this case should remain stayed while the Parties pursue
`appeals of the PTAB’s Final Written Decisions, the parties agree on a case schedule in the
`event the Court determines that the litigation should proceed. Windy City also proposes a
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`separate schedule in the event the Court allows Windy City to substitute claims.
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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 8 of 11
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`Event
`
`Case Management
`Conference
`Amended Pat. L.R. 3-1
`Disclosure of Asserted
`Claims and
`Infringement
`Contentions.
`Amended Pat. L.R. 3-3
`Pat. L.R. 3-3. Invalidity
`Contentions.
`Pat. L.R. 4-1. Exchange
`of Proposed Terms for
`Construction.
`Pat. L.R. 4-2. Exchange
`of Preliminary Claim
`Constructions and
`Extrinsic Evidence.
`Pat. L.R. 3-8 Damages
`Contentions
`Pat. L.R. 4-3. Joint
`Claim Construction and
`Prehearing Statement.
`Pat. L.R. 3-9
`Responsive Damages
`Contentions
`Pat. L.R. 4-4.
`Completion of Claim
`Construction Discovery
`(including depositions
`of experts who
`submitted declarations
`in support of claim
`construction positions)
`Pat. L.R. 4-5(a). Claim
`Construction Briefs –
`opening brief
`Pat. L.R. 4-5(b). Claim
`
`Date per
`Rule or
`Order
`February 12,
`2018
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`Agreed Date If No
`Claim Substitution
`
`Date2 If Court
`Allows Substitution
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`N/A
`
`N/A
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`March 23, 2018
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`May 4, 2018
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`February 26, 2018
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`May 18, 2018
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`March 19, 2018
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`June 8, 2018
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`April 3, 2018
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`April 13, 2018
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`June 22, 2018
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`June 29, 2018
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`May 3, 2018
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`July 20, 2018
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`May 14, 2018
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`July 27, 2018
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`May 28, 2018
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`August 13, 2018
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`June 11, 2018
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`August 27, 2018
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`2 As noted in elsewhere in this Statement, Facebook opposes any effort to change the scope of
`this case by substituting claims that Windy City could have elected to assert. Moreover,
`Facebook believes that this case should remain stayed while the Parties pursue appeals of the
`PTAB’s Final Written Decisions. In the event the Court allows Windy City to substitute seven
`claims and not renew the stay, the proposed schedule is acceptable.
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`STATEMENT
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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 9 of 11
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`Event
`
`Construction Briefs –
`responsive brief
`Pat. L.R. 4-5(c). Claim
`Construction Briefs –
`reply brief
`Technology Tutorial
`
`Pat. L.R. 4-6. Claim
`Construction Hearing
`(Markman)
`Federal Circuit’s Model
`Order Limiting Excess
`Patent Claims and Prior
`Art – Final Election of
`Asserted Claims
`(Phase 2a)
`Federal Circuit’s Model
`Order Limiting Excess
`Patent Claims and Prior
`Art – Final Election of
`Asserted Prior Art
`(Phase 2b)3
`Pat. L.R. 3-7.
`Advice of Counsel
`
`Close of fact discovery
`
`Opening expert reports
`
`Rebuttal expert reports
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`Close of expert
`discovery
`Opening summary
`judgment/Daubert briefs
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`Date per
`Rule or
`Order
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`Agreed Date If No
`Claim Substitution
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`Date2 If Court
`Allows Substitution
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`June 18, 2018
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`September 3, 2018
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`Subject to the
`convenience of the
`Court’s calendar
`Subject to the
`convenience of the
`Court’s calendar
`Not later than 28 days
`after service by Court of
`its Markman Order
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`Subject to the
`convenience of the
`Court’s calendar
`Subject to the
`convenience of the
`Court’s calendar
`N/A
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`Not later than 14 days
`after service of a Final
`Election of Asserted
`Claims
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`Not later than 42 days
`after service by Court of
`its Markman Order
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`Not later than 50 days
`after service by Court of
`its Markman Order
`60 days after Markman
`Order
`14 days after fact
`discovery cut-off
`28 days after opening
`expert reports
`14 days after rebuttal
`expert reports
`14 days after close of
`expert discovery
`
`Not later than 50 days
`after service by Court of
`its Markman Order
`60 days after Markman
`Order
`14 days after fact
`discovery cut-off
`28 days after opening
`expert reports
`14 days after rebuttal
`expert reports
`14 days after close of
`expert discovery
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`3 By providing dates for prior art elections, Windy City is not agreeing that Facebook may raise
`invalidity challenges against the patents-in-suit. As stated above, to the extent Facebook pursues
`invalidity defenses, counterclaims, or otherwise challenges the validity of the patents-in-suit,
`Windy City reserves its right to seek appropriate relief (e.g., in a motion to strike and/or motion
`for summary judgment) as warranted by law, including statutory and common law estoppel.
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`JOINT CASE MANAGEMENT CONFERENCE
`STATEMENT
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`9.
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` 4:16-CV-01730-YGR
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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 10 of 11
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`Event
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`Answering summary
`judgment/Daubert briefs
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`Reply summary
`judgment/Daubert briefs
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`Summary judgment
`hearings
`Pretrial Conference
`Trial
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`Date per
`Rule or
`Order
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`Agreed Date If No
`Claim Substitution
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`Date2 If Court
`Allows Substitution
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`14 days after Opening
`summary
`judgment/Daubert briefs
`7 days after Answering
`summary
`judgment/Daubert briefs
`Set by Court
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`14 days after Opening
`summary
`judgment/Daubert briefs
`7 days after Answering
`summary
`judgment/Daubert briefs
`Set by Court
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`Set by Court
`Set by Court
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`Set by Court
`Set by Court
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`18.
`Trial.
`The parties have requested trial by jury. The parties estimate that the expected length
`of trial is five days.
`19.
`Disclosure of Non-party Interested Entities or Persons.
`The parties have filed Certifications of Interested Persons or Entities pursuant to Civil
`Local Rule 3-16.
`Windy City’s Statement:
`
`Windy City has filed its certification of interested entities with the Court. There are no
`other non-parties interested entities or persons.
`Facebook’s Statement:
`Facebook certifies that it does not have a parent corporation and that no publicly held
`company owns more than 10% of Facebook’s stock.
`20.
`Professional Conduct
`All attorneys of record for the parties have reviewed the Guidelines for Professional
`Conduct for the Northern District of California.
`21. Other Matters
`
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`The parties have no other matters at this time that may facilitate the just, speedy, and
`inexpensive disposition of this matter.
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`JOINT CASE MANAGEMENT CONFERENCE
`STATEMENT
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`10.
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` 4:16-CV-01730-YGR
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`Case 4:16-cv-01730-YGR Document 95 Filed 02/05/18 Page 11 of 11
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`
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`Dated: February 5, 2018
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`
`Respectfully submitted,
`
`CALDWELL CASSADY & CURRY
`
`/s/ Warren J. McCarty
`Warren J. McCarty, III
`Attorneys for Plaintiff
`WINDY CITY INNOVATIONS, LLC
`
`
`COOLEY LLP
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`/s/ Heidi L. Keefe
`Heidi L. Keefe
`Attorneys for Defendant
`FACEBOOK, INC.
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`Cooley LLP
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`By: /s/ Heidi L. Keefe
`Heidi L. Keefe
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`FILER’S ATTESTATION
`Pursuant to Civil Local Rule 5.1(i)(3), the undersigned attests that all parties have
`concurred in the filing of this Joint Case Management Statement.
`
`DATED: February 5, 2018
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`
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`JOINT CASE MANAGEMENT CONFERENCE
`STATEMENT
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`11.
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` 4:16-CV-01730-YGR
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