Case 1:11-cv-00908-SLR-MPT Document 288 Filed 01/08/14 Page 1 of 3 PageID #: 11539
`Case 1:11—cv—00908—SLR—MPT Document 288 Filed 01/08/14 Page 1 of 3 PagelD #: 11539
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`INTELLECTUAL VENTURES I LLC and
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`INTELLECTUAL VENTURES II LLC,
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`Plaintiffs,
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`v.
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`MOTOROLA MOBILITY LLC,
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`Defendant.
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`\./\/\/\./\./\/\/\/\/\/
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`Civ. No. 11-908-SLR
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`0 R D E R
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`At Wilmington this %I"day of January, 2014, having conferred with counsel at
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`the pretrial conference, and having reviewed the materials subsequently submitted by
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`counset
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`IT IS ORDERED that:
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`1. The trial that begins on Tuesday, January 21, 2014, shall be limited to those
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`issued related to the ‘462, ‘O54 and ‘464 patents. The court shall retain the original
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`schedule, with the allocation of 22 hours per plaintiffs (collectively) and defendant, with
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`the parties providing lunch to the jurors. The court shall confer with counsel in due
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`course regarding the trial schedule for the ‘144 and ‘45O patents, with the week of April
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`7, 2014 being the earliest trial date available. The parties should submit their special
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`voir dire, jury instructions and verdict form on or before January 15, 2014.
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`2. With respect to products released afterthe close of fact discovery, it has
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`always been the court’s position that a plaintiff may assert any claims of the patents-in-
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`Case 1:11-cv-00908-SLR-MPT Document 288 Filed 01/08/14 Page 2 of 3 PageID #: 11540
`Case 1:11—cv—OO908—SLR—MPT Document 288 Filed 01/08/14 Page 2 of 3 PagelD #: 11540
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`suit against such products, as the court’s scheduling order is (in effect) an artificial limit
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`on the scope of a plaintiff's infringement case.
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`3. The court declines to find inadmissible, as a matter of law, Dr. Stewart’s
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`survey and related opinions. As stated at the pretrial conference, a survey is an
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`appropriate way to find out if the general public uses the accused products. Without
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`having more detailed information, however, the court cannot rule on whether the survey
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`at issue appropriately assays the issue, e.g., whether the public’s use of an application
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`can then be explained adequately through expert testimony. With that background, on
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`or before January 15, 2014, IV shall file a copy of Dr. Stewart’s expert report as it
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`relates to the survey and both parties shall file no more than a ten-page memorandum
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`of law explaining why, or why not, such evidence should be admitted.
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`4.
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`In light of the analysis in the court's Memorandum Opinion issued on January
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`2, 2014, the court shall grant summary judgment sua sponte in favor of IV with respect
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`to whether the '366 patent is entitled to a priority date earlier than the ‘O54 patent's
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`alleged priority date.‘ "[D]istrict courts are widely acknowledged to possess the power
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`to enter summaryjudgments sua sponte, so long as the losing party was on notice that
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`[it] had to come fonNard with all of [its] evidence." Anderson v. Wachovia Mortg. Corp.,
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`621 F.3d 261, 280 (3d Cir. 2010) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326
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`(1986)). This court has held that when one party moves for summaryjudgment against
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`an adversary, "Fed. R. Civ. P. 54(0) and 56, when read together, give the court the
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`power to render a summaryjudgment for the adversary if it is clear that the case
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`‘Motorola disagrees that the ‘054 patent is entitled to the September 30, 1993
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`priority date that IV claims but, for the limited purpose of its summaryjudgment motion,
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`it does not dispute lV’s assertion.
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`(D.l. 231 at 21, n.13)
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`

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`Case 1:11-cv-00908-SLR-MPT Document 288 Filed 01/08/14 Page 3 of 3 PageID #: 11541
`Case 1:11—cv—OO908—SLR—MPT Document 288 Filed 01/08/14 Page 3 of 3 PagelD #: 11541
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`warrants that result, even though the adversary has not filed a cross-motion for
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`summaryjudgment." Talecris Biotherapeutics, Inc. v. Baxter Int'l, Inc., 510 F. Supp. 2d
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`356, 362 (D. Del. 2007). Accordingly, the court finds that the '366 patent is not entitled
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`to the September 22, 1993 priority date of the grandparent application and does not
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`qualify as prior art to the ‘O54 patent as a matter of law.
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` _
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`United States District Judge