IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`)
`OPTOLUM, INC.,
`
`)
`
`
`)
`
`Plaintiff,
`
`)
`
`Civil Action No.
`)
`1:17-cv-00687
`)
`)
`)
`)
`)
`
`
`DEFENDANT CREE, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
`UNDER FEDERAL RULE OF CIVIL PROCEDURE 50(b) FOR JUDGMENT AS
`A MATTER OF LAW THAT THE ENTIRE MARKET VALUE RULE DOES NOT
`APPLY
`
`v.
`
`CREE, INC.,
`
`
`
`
`
`Defendant.
`
`Case 1:17-cv-00687-WO-JLW Document 363 Filed 01/12/22 Page 1 of 8
`
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`)
`OPTOLUM, INC.,
`
`)
`
`
`)
`
`Plaintiff,
`
`)
`
`Civil Action No.
`)
`1:17-cv-00687
`)
`)
`)
`)
`)
`
`
`DEFENDANT CREE, INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION
`UNDER FEDERAL RULE OF CIVIL PROCEDURE 50(b) FOR JUDGMENT AS
`A MATTER OF LAW THAT THE ENTIRE MARKET VALUE RULE DOES NOT
`APPLY
`
`v.
`
`CREE, INC.,
`
`
`
`
`
`Defendant.
`
`Case 1:17-cv-00687-WO-JLW Document 363 Filed 01/12/22 Page 1 of 8
`
`
`
`Defendant Cree Inc. (“Cree”) files its reply in support
`of its Motion Under Federal Rule Of Civil Procedure 50(b)
`For Judgment As A Matter Of Law That The Entire Market
`Value Rule Does Not Apply.
`The substantive merits of the underlying motion have
`been briefed extensively to the Court. Plaintiff OptoLum,
`Inc. (“OptoLum”)’s opposition to the present motion does
`not raise new substantive responsive arguments that this
`Court has not already been presented with. To avoid
`burdening the Court with unnecessary repetition, Cree rests
`its substantive position on the merits of its motion and
`prior briefs to this Court on the issue.
`Procedurally, OptoLum contends that Cree’s motion
`should be denied as untimely because Cree did not file its
`Rule 50(b) motion within 28 days of the jury being
`discharged. Dkt. 361 at 1. OptoLum’s argument fails for
`several reasons.
`First, OptoLum has waived its timeliness challenge.
`Before any JMOLs were filed, OptoLum’s counsel asked
`counsel for Cree to confirm that “the parties will have 28
`days from the entry of judgement to file all motions
`
`
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 363 Filed 01/12/22 Page 2 of 8
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`
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`pursuant to Rule 50(b).” Ex. A (Email fr. OptoLum’s
`Counsel) at 2 (emphasis added). Cree agreed, pointing out
`that this Court had instructed the parties to “consider the
`deadline extended to allow 30 days.” Id. at 1. OptoLum
`responded, “concur[ring] that the effective deadline for
`all Rule 50(b) motions is 28 days after the entry of
`judgement.” Id.
`By failing to object when this Court granted a 30-day
`extension, and by agreeing to the above deadline for all
`Rule 50(b) motions, OptoLum waived any argument that the
`Court could not extend the deadline for Rule 50(b) motions
`under Federal Rule of Civil Procedure 6(b)(2). See Legg v.
`Ulster Cty., 820 F.3d 67, 78–79 (2d Cir. 2016) (holding
`Rule 6(b) is subject “to waiver or equitable exception” and
`finding that any timeliness objection had been waived);
`Mobley v. C.I.A., 806 F.3d 568, 577 (D.C. Cir. 2015)
`(holding that “[t]he timing rules at issue here—Federal
`Rules of Civil Procedure 6(b)(2) and 59(e) and Federal Rule
`of Appellate Procedure (‘FRAP’) 4(a)(4)(A)(iv)—are claim-
`processing rules” that are “subject to waiver and
`forfeiture”); see also Escribano v. Travis Cty., Texas, 947
`F.3d 265, 271–72 (5th Cir. 2020) (“Rule 50(b) is also a
`2
`
`Case 1:17-cv-00687-WO-JLW Document 363 Filed 01/12/22 Page 3 of 8
`
`
`
`
`claim-processing requirement. We therefore hold that Rule
`50 does not impose a jurisdictional deadline.”).
`Accordingly, the operating deadline for this motion is 28
`days from the entry of judgment. Because no such judgment
`has been entered, Cree motion is well within the deadline
`of Rule 50(b) and the parties’ stipulation.
`Furthermore, and most importantly, this Court need not
`decide any of the issues raised by all of the pending
`JMOLs, including whether they are timely, because all of
`the pending JMOLs (OptoLum’s and Cree’s) are moot. Cree’s
`pending motions concern damages calculations and
`invalidity, and OptoLum’s motion concerns validity. Cree
`raised invalidity as an affirmative defense to any alleged
`infringement. Because the jury found that the asserted
`patents were not infringed, this Court need not reach any
`of the issues concerning invalidity or damages. “To hold a
`patent valid if it is not infringed is to decide a
`hypothetical case.” Cardinal Chem. Co. v. Morton Int’l,
`Inc., 508 U.S. 83, 94 (1993) (citation omitted); see also
`Fire King Int’l, LLC v. Tidel Eng’g, L.P., No. 3-07-CV0655-
`G, 2009 WL 10704423, at *5 (N.D. Tex. Mar. 16, 2009),
`report and recommendation adopted, 613 F. Supp. 2d 836
`3
`
`Case 1:17-cv-00687-WO-JLW Document 363 Filed 01/12/22 Page 4 of 8
`
`
`
`
`(N.D. Tex. 2009) (denying summary judgment of invalidity as
`moot, noting that where a court grants summary judgment of
`non-infringement any affirmative defenses become moot, and
`citing collection of cases).1 The jury found the patents
`were not infringed, and until that finding is disturbed,
`there is no need for the Court to entertain any challenges
`with respect to invalidity or damages. See PODS, Inc. v.
`Porta Stor, Inc., 484 F.3d 1359, 1368 (Fed. Cir. 2007)
`(holding there is “no need to consider . . . arguments
`related to invalidity” because “finding of non-infringement
`
`
`1 Despite requesting during trial that the jury amend
`the verdict form with respect to invalidity – even after
`the Court indicated it would not enter a final judgment of
`invalidity - OptoLum contends that its JMOL seeking a
`finding of validity is not moot. Dkt. 362 at 2-4. OptoLum
`argues that Cree’s reliance on Cardinal Chemical Co. v.
`Morton Int’l, Inc., 508 U.S. 83, 98 (1993) is misguided
`because the Court there held that invalidity is not moot.
`Even cursory review of that case shows OptoLum completely
`misses the point. The reason invalidity was not moot in
`Cardinal Chemical was because there was a declaratory
`judgment counterclaim seeking invalidity. Id. at 95-98;
`Synchronoss Techs., Inc. v. Dropbox, Inc., 987 F.3d 1358,
`1365 (Fed. Cir. 2021) (citing Cardinal Chemical for
`proposition that non-infringement does not moot “a request
`for declaratory judgment of invalidity”). Here, there is
`no counterclaim for declaratory judgment of invalidity;
`instead, invalidity was merely raised as an affirmative
`defense.
`
`4
`
`Case 1:17-cv-00687-WO-JLW Document 363 Filed 01/12/22 Page 5 of 8
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`moots any affirmative defense of invalidity”). All
`currently pending JMOLs are therefore moot.
`For the foregoing reasons, to the extent that OptoLum
`maintains that issues of damages and invalidity are not
`moot despite the jury’s finding of non-infringement, Cree
`respectfully requests that this Court grant its JMOL.
`
`Dated: January 12, 2022 Respectfully submitted,
`
`
`By: /s/ Blaney Harper
`Blaney Harper
`JONES DAY
`51 Louisiana Avenue, N.W.
`Washington, D.C. 20001-2113
`Telephone: (202) 879-3939
`Facsimile: (202) 626-1700
`Email: bharper@jonesday.com
`
`
`/s/ Peter D. Siddoway
`Peter D. Siddoway
`NC State Bar No. 45647
`SAGE PATENT GROUP
`4120 Main at North Hills St.
`Suite 230
`Raleigh, NC, 27609
`Telephone: 984-219-3358
`Facsimile: (984) 538-0416
`Email: psiddoway@sagepat.com
`
`Attorneys for Defendant Cree, Inc.
`
`
`
`5
`
`Case 1:17-cv-00687-WO-JLW Document 363 Filed 01/12/22 Page 6 of 8
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`OPTOLUM, INC.,
`
`
`
`Plaintiff,
`
`Civil Action No.
`1:17-cv-00687
`
`
`
`v.
`
`CREE, INC.,
`
`Defendant.
`
`
`
`CERTIFICATE OF WORD COUNT
`
`I hereby certify that the foregoing complies with the
`limitations set forth in Local Rule 7.3(d) by not exceeding
`3,125 words, including the body of the brief, headings and
`footnotes, but excluding the caption, signature lines,
`certificate of service, and cover page or index.
`
`
`/s/ Peter D. Siddoway
`Peter D. Siddoway
`
`
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 363 Filed 01/12/22 Page 7 of 8
`
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that on January 12, 2022, I
`electronically filed the foregoing with the Clerk of Court
`for the United States District Court for the Middle
`District of North Carolina using the CM/ECF Filing System,
`which will send notification via electronic means to all
`counsel of record.
`
`
`
`
`/s/ Peter D. Siddoway
`Peter D. Siddoway
`NC State Bar No. 45647
`SAGE PATENT GROUP
`4120 Main at North Hills St.
`Suite 230
`Raleigh, NC, 27609
`Telephone: 984-219-3358
`Facsimile: (984) 538-0416
`Email: psiddoway@sagepat.com
`
`
`
`
`
`Case 1:17-cv-00687-WO-JLW Document 363 Filed 01/12/22 Page 8 of 8
`
`
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