Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 1 of 21 PageID #: 5417
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`UNILOC USA, INC., et al.,
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`Plaintiffs,
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`v.
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`BIG FISH GAMES, INC.,
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`Defendant.
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`Case No. 2:16-cv-00741- RWS
`LEAD CASE
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`Case No. 2:16-cv-00858- RWS
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`JURY TRIAL DEMANDED
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`§
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`DEFENDANT BIG FISH GAMES, INC.’S MOTION TO FIND THE CASE
`EXCEPTIONAL AND AWARD ATTORNEYS’ FEES
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 2 of 21 PageID #: 5418
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`TABLE OF CONTENTS
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`
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`A.
`B.
`II.
`III.
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`A.
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`B.
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`PRELIMINARY STATEMENT................................................................................................................... 1
`ARGUMENT ................................................................................................................................................ 3
`I.
`LEGAL STANDARDS ............................................................................................................... 3
`Exceptional Case Standard ...................................................................................................... 3
`The Court’s Inherent Authority To Award Attorneys’ Fees .................................................... 4
`BIG FISH IS THE PREVAILING PARTY ................................................................................. 4
`UNILOC’S CONTINUED PROSECUTION OF A CASE PREDICATED UPON ALREADY
`INVALIDATED CLAIMS RENDERS THIS CASE EXCEPTIONAL...................................... 5
`Uniloc Repeatedly Conceded That The Already Invalidated Claims Were Representative,
`But Refused To Concede Invalidity Of The ’466 Patent ......................................................... 5
`Uniloc Unreasonably Asserted The Two Remaining Patents-In-Suit Despite The Impact Of
`The Invalidation Of The ’466 Patent ....................................................................................... 7
`UNILOC’S UNREASONABLE LITIGATION CONDUCT WARRANTS AN
`EXCEPTIONAL CASE FINDING AND ATTORNEYS’ FEES ............................................... 9
`Uniloc Failed To Comply With The Patent Local Rules With Respect To Claim
`Construction, And Repeatedly Changed Its Positions ............................................................. 9
`Uniloc Abused the Infringement Contention Process ............................................................ 11
`B.
`Uniloc Abused The Discovery Process, Generally ................................................................ 13
`C.
`CONCLUSION ........................................................................................................................................... 15
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`IV.
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`A.
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`-i-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 3 of 21 PageID #: 5419
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`
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`TABLE OF AUTHORITIES
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`
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`Page(s)
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`Cases
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`Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
`421 U.S. 240 (1975) ............................................................................................................................... 4
`
`Auto. Techs. Int’l, Inc. v. Siemens VDO Auto. Corp.,
`744 F. Supp. 2d 646 (E.D. Mich. 2010) ............................................................................................. 6, 9
`
`Edekka LLC v. 3balls.com, Inc.,
`No. 2:15-CV-541, 2015 WL 9225038 (E.D. Tex. Dec. 17, 2015) ................................................. 4, 7, 9
`
`Eon-Net LP v. Flagstar Bancorp,
`653 F.3d 1314 (Fed. Cir. 2011) ............................................................................................................ 11
`
`Inventor Holdings, LLC v. Bed Bath & Beyond Inc.,
`No. CV 14-448-GMS, 2016 WL 3090633 (D. Del. May 31, 2016) ....................................................... 8
`
`Iris Connex, LLC v. Dell, Inc.,
`235 F. Supp. 3d 826 (E.D. Tex. 2017) ............................................................................................... 3, 4
`
`MarcTec, LLC v. Johnson & Johnson,
`664 F.3d 907 (Fed. Cir. 2012) ................................................................................................................ 7
`
`O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc.,
`467 F.3d 1355 (Fed. Cir. 2006) ............................................................................................................ 10
`
`Octane Fitness, LLC v. ICON Health & Fitness, Inc.,
`134 S. Ct. 1749 (2014) ....................................................................................................................... 3, 9
`
`Oplus Techs., Ltd. v. Vizio, Inc.,
`782 F.3d 1371 (Fed. Cir. 2015) ................................................................................................ 10, 11, 13
`
`SFA Sys., LLC v. Newegg, Inc.,
`793 F.3d 1344 (Fed. Cir. 2015) .............................................................................................................. 9
`
`In re Skyport Global Comm., Inc.,
`642 Fed. App’x 301 (5th Cir. 2016) ....................................................................................................... 4
`
`Taurus IP, LLC v. DaimlerChrysler Corp.,
`726 F.3d 1306 (Fed. Cir. 2013) .............................................................................................................. 6
`
`TC Heartland LLC v. Kraft Foods Group Brands, LLC,
`137 S. Ct. 1514 (2017) ......................................................................................................................... 14
`
`Uniloc USA, Inc. v. AVG Techs. USA, Inc.
`Case No. 2:16-cv-393, Dkt. No. 129 (E.D. Tex. Mar. 28, 2017) .................................................. Passim
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`-2-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 4 of 21 PageID #: 5420
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`Statutes
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`35 U.S.C. § 101 ..................................................................................................................................... 4, 5, 7
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`35 U.S.C. § 285 ..................................................................................................................................... 1, 3, 4
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`Rules
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`Fed. R. Civ. P. 26(f) .................................................................................................................................... 14
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`Fed. R. Civ. P. 54(d)(2)(C) ..................................................................................................................... 3, 15
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`Local Rule 3-6(b) ........................................................................................................................................ 13
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`-3-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 5 of 21 PageID #: 5421
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`Pursuant to 35 U.S.C. § 285, as well as this Court’s inherent authority, Defendant Big Fish
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`Games, Inc. (“Defendant” or “Big Fish”) respectfully moves for an order finding this case
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`exceptional and awarding Big Fish its attorneys’ fees, in an amount to be determined, jointly and
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`severally, against Plaintiffs Uniloc USA, Inc. and Uniloc Luxembourg, S.A. (together, “Uniloc”
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`or “Plaintiffs”).
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`PRELIMINARY STATEMENT
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`When compared to the mine run of patent infringement cases, this case proves exceptional
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`under 35 U.S.C. § 285. Uniloc did not advocate a reasonable, albeit ultimately unsuccessful,
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`position. Instead, Uniloc pursued the case despite the existence of an Order from this very Court
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`that any reasonable plaintiff would have treated as unmistakable evidence that no legitimate
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`validity or infringement position existed. Uniloc elected to proceed with meritless litigation that
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`it conducted in a plainly unreasonable manner, while seeking to extract a disproportionate amount
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`in settlement, as it had done with other prior defendants whose “license agreements” are now
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`worthless. Big Fish is not seeking to be rewarded for having fought Uniloc to this point; rather,
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`this case should never have required Big Fish, or any of the other defendants, to defend themselves.
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`When Plaintiffs’ action against Big Fish was still in its early stages, this Court invalidated
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`claims 1, 2, and 7 of U.S. Patent No. 6,510,466 (“the ’466 patent”) in a related, earlier-filed case.1
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`Despite that ruling, Uniloc continued to assert those same invalid claims against Big Fish.
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`Additionally, although Uniloc admitted that these invalidated claims were representative of—and
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`therefore predictive of the invalidity of—the other asserted claims in the ’466 patent and two
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`additional, related patents, Uniloc continued to assert those ultimately invalid claims against Big
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`Fish. Uniloc attempted to forestall the obvious conclusion that its patent infringement claims were
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`1 See Uniloc USA, Inc. v. AVG Techs. USA, Inc., Lead Case No. 2:16-cv-393, Dkt. No. 129
`(hereinafter, the “Prior Order”).
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`-1-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 6 of 21 PageID #: 5422
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`substantively weak by hiding behind allegations that means-plus-function claims required the
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`Court’s construction, while simultaneously conceding that the already-invalidated claims were
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`representative of those same means-plus-function claims too.
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`The meritless nature of Uniloc’s infringement theories were laid bare over the course of
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`the 14-month case, during which time Uniloc conducted the litigation in blatant disregard for the
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`Court’s Patent Local Rules and General Orders, the discovery obligations set by the Federal Rules
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`of Civil Procedure, and the decisions of this Court requiring plaintiffs to continually reassess the
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`merits of their case as it proceeds.
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`Uniloc repeatedly refused to identify structures for the very mean-plus-function claims
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`whose construction Uniloc cited as a basis for prolonging its litigation campaign. Uniloc even
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`withdrew agreed-upon constructions after the parties had completed claim construction briefing,
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`and compounded its disregard for this Court’s procedures by attempting to reargue its claim
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`construction positions through the introduction, for the first time, of expert testimony in support
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`of its positions―after the close of fact discovery.
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`Further, Uniloc refused to provide information necessary to provide Big Fish with notice
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`of what aspects of Big Fish’s system Uniloc was accusing of infringement. Ultimately, less than
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`one month before the close of fact discovery, Uniloc acknowledged that it had no factual basis for
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`a number of its contentions and needed additional discovery to “nail this down.”
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`Uniloc’s disregard for Court procedures to conceal the substantive deficiencies in its case
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`also manifested itself in a steadfast refusal to abide by General Order 13-20, as it continued to
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`assert 60 claims against Big Fish until shortly before the end of fact discovery, resulting in
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`substantial prejudice to—and unnecessary expense incurred by—Big Fish in preparing expert
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`reports.
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`-2-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 7 of 21 PageID #: 5423
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`Finally, Uniloc abused the discovery process, serving discovery requests in this case that
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`it admitted were intended for a different, unrelated action, and providing discovery responses that
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`were so deficient as to fall outside the bounds of reasonable litigation conduct.
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`Accordingly, the Court should find this case exceptional, and award Big Fish its attorneys’
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`fees
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`in an amount
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`to be determined,
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`in accordance with Federal Rule of Civil
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`Procedure 54(d)(2)(C).
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`I.
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`LEGAL STANDARDS
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`ARGUMENT
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`Exceptional Case Standard
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`A.
`“The court in exceptional cases may award reasonable attorney fees to the prevailing
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`party.” 15 U.S.C. § 285. An exceptional case “is simply one that stands out from others with
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`respect to the substantive strength of a party’s litigating position (considering both the governing
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`law and the facts of the case) or the unreasonable manner in which the case was litigated.” Octane
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`Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749, 1756 (2014). District courts assess
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`exceptionality on a case-by-case basis, exercising their discretion based upon the totality of the
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`circumstances. Id. In conducting its evaluation, “a district court may consider a ‘nonexclusive’
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`list of ‘factors,’ including ‘frivolousness, motivation, objective unreasonableness (both in the
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`factual and legal components of the case) and the need in particular circumstances to advance
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`considerations of compensation and deterrence.’” Iris Connex, LLC v. Dell, Inc., 235 F. Supp. 3d
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`826, 842 (E.D. Tex. 2017) (quoting Octane, 134 S. Ct. at 1756 n.6). A district court also may
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`award fees where unreasonable litigation conduct, even if not “necessarily independently
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`sanctionable,” is exceptional. Octane, 134 S. Ct. at 1757. The prevailing party need show
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`entitlement to attorneys’ fees “only by a preponderance of the evidence.” Id. at 1758 (citations
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`omitted).
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`-3-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 8 of 21 PageID #: 5424
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`Where a district court determines that a case is exceptional, it must then determine, again
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`in the exercise of its discretion, whether and in what amount attorney fees are appropriate. See,
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`e.g., Edekka LLC v. 3balls.com, Inc., No. 2:15-CV-541, 2015 WL 9225038, at *2 (E.D. Tex.
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`Dec. 17, 2015).
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`The Court’s Inherent Authority To Award Attorneys’ Fees
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`B.
`The Court also possesses the inherent power to award attorneys’ fees as a sanction for
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`litigation abuse. See Iris Connex, 235 F. Supp. 3d at 858; see also In re Skyport Global Comm.,
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`Inc., 642 Fed. App’x 301, 304 (5th Cir. 2016) (noting that courts have inherent power to sanction
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`a party that “has engaged in bad faith conduct”). In exercising its inherent authority, the district
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`courts may take into account a number of factors, including when a party has “acted in bad faith,
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`vexatiously, wantonly, or for oppressive reasons.” Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
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`421 U.S. 240, 258-59 (1975) (citations omitted).
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`II.
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`BIG FISH IS THE PREVAILING PARTY
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`In its Memorandum Opinion and Order, dated September 28, 2017, this Court held that all
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`claims of the three patents asserted against Big Fish—some 60 claims in total—were invalid under
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`35 U.S.C. § 101, and dismissed the action with prejudice. See Dkt. 2672; see also Dkt. 269
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`(granting final judgment of dismissal as to all claims). Big Fish is thus the prevailing party within
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`the meaning of 35 U.S.C. § 285. See Edekka, 2015 WL 9225038, at *2 (awarding attorneys’ fees
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`following grant of § 101 motion to dismiss).
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`2 Unless otherwise noted, all docket entries refer to Lead Case No. -741.
`-4-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 9 of 21 PageID #: 5425
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`III. UNILOC’S CONTINUED PROSECUTION OF A CASE PREDICATED UPON
`ALREADY INVALIDATED CLAIMS RENDERS THIS CASE EXCEPTIONAL
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`A.
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`Uniloc Repeatedly Conceded That The Already Invalidated Claims Were
`Representative, But Refused To Concede Invalidity Of The ’466 Patent
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`Uniloc’s case against Big Fish is one of many based on the same patents, and a number of
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`the other actions moved forward at a faster pace than the Big Fish action. One case in particular—
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`Uniloc USA, Inc. v. AVG Technologies USA, Inc., Lead Case No. 2:16-cv-3933—resulted in a
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`partial dismissal with prejudice of certain patent claims that this Court invalidated as claiming
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`abstract, unpatentable subject matter under 35 U.S.C. § 101. Specifically, this Court invalidated
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`independent claim 1 of the ’466 patent, along with dependent claims 2 and 7 after concluding that
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`the limitations merely enumerated a routine function of computers without any technological
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`improvement, and failed to provide any inventive concept. See Prior Order at 11-17. Critically,
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`the Court did not invalidate claims 15 and 22 of the ’466 patent because, according to the Court,
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`the defendants did not adequately establish that claim 1, a non-means-plus-function claim, was
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`representative of claims 15 and 22, both of which were drafted in means-plus-function format. Id.
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`at 7.
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`Notwithstanding the Prior Order, Uniloc never amended its preliminary infringement
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`contentions to remove claims 1, 2, or 7 of the ’466 patent and never notified Big Fish that it was
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`dropping those claims until just before the close of fact discovery, 6 months later. This was no
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`mere oversight. Indeed, Uniloc continued to assert these claims some five months after the Prior
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`Order invalidated those claims in its supplemental infringement contentions, contrary to its
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`representation to the Court just three days earlier that it was withdrawing these claims. See Dkt.
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`3 The Prior Order was based on a Motion to Dismiss for Failure to State a Claim filed by
`BitDefender LLC it its individual case (Case No. 2:16-cv-394), but the Prior Order was filed in
`Lead Case No. 2:16-cv-393. See Prior Order at 2.
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 10 of 21 PageID #: 5426
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`238 at 1; Dkt. 262-8 at 2-29. Uniloc did not withdraw them until it served its final election of
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`asserted claims on September 6, 2017, four months after the deadline to submit a preliminary
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`election of claims, and nearly two weeks past the time to make a final election of claims as required
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`by General Order 13-20. Connolly Decl., Ex. A (9/6/17 email from J. Foster). This fact alone
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`warrants an exceptional case finding. See Taurus IP, LLC v. DaimlerChrysler Corp., 726 F.3d
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`1306, 1328 (Fed. Cir. 2013) (basing exceptional case finding in part on “rule that a party cannot
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`assert baseless infringement claims and must continually assess the soundness of pending
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`infringement claims”); cf. Auto. Techs. Int’l, Inc. v. Siemens VDO Auto. Corp., 744 F. Supp. 2d
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`646, 650 (E.D. Mich. 2010) (“[O]nce a plaintiff is confronted with prior art or other facts that
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`render the patents-in-suit invalid, the maintenance of or persistence in that lawsuit can lead to a
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`finding of exceptionality.”) (emphasis added).
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`Uniloc did not simply persist in asserting three invalidated claims, however. Its
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`supplemental infringement contentions with respect to means-plus-function claims 15 and 22—
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`the same claims that the Prior Order did not invalidate because non-means-plus-function claim 1
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`did not appear to be representative—contained no infringement analysis other than a recitation of
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`the claim language and a cross-reference to invalidated, non-means-plus-function claims. See Dkt.
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`262-8 at 36-41. Uniloc’s use of these claims as representative of the other claims for purposes of
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`establishing infringement, some five months after the Prior Order invalidated these claims,
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`unequivocally establishes Uniloc’s infringement theory lacked substantive strength.
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`Uniloc was fully aware of the critical importance of claim 1, and the other invalidated
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`claims, to its entire infringement theory months before the Prior Order issued. Big Fish, in its
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`motion to dismiss, addressed all of the asserted claims of the three patents-in-suit and expressly
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`addressed how the representative claims analyzed in the motion were indeed representative of the
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`-6-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 11 of 21 PageID #: 5427
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`remaining asserted claims. See Dkt. 80 at 2-5. Crucially,
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`Uniloc [did] not refute or even acknowledge [Big Fish’s] assertions of
`representativeness in its Opposition and instead argues only about claim 1 of each
`patent and the respective dependent claims. . . . In fact, nowhere in its Opposition
`does Uniloc address or cite to any of the other claims.
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`Dkt. 267 at 7. Even when presented with the opportunity to submit a supplemental brief regarding
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`the impact of the Prior Order to this Action, “Uniloc again [did] not refute [Big Fish’s] assertion
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`of representativeness” with respect to the means-plus-function claims. Dkt. 267 at 8 (emphasis
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`added). Thus, although the Prior Order deferred consideration of the means-plus-function claims
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`in the ’466 patent corresponding to the ineligible method claims because the prior defendants had
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`not sufficiently established that the claims were representative, Uniloc had conceded that claim 1
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`was representative before the Prior Order ever issued. The impact of the Prior Order was thus
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`unmistakable and unavoidable. Rather than “acknowledging the inherent weaknesses of the ’[466]
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`patent, [Uniloc] proffered completely untenable arguments to the Court throughout the § 101
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`briefing process” and the remainder of the case. Edekka, 2015 WL 9225038, at *2; MarcTec, LLC
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`v. Johnson & Johnson, 664 F.3d 907, 917 (Fed. Cir. 2012) (exceptional case finding warranted
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`where plaintiff “knew its allegations were baseless but pursued them anyway”).
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`Consequently, Uniloc’s continued assertion of the ’466 patent against Big Fish following
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`the Prior Order constitutes pursuit of an objectively unreasonable action based upon substantively
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`meritless claims. Thus, the Court should find this case is exceptional and award Big Fish its to-
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`be-determined attorneys’ fees.
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`B.
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`Uniloc Unreasonably Asserted The Two Remaining Patents-In-Suit Despite
`The Impact Of The Invalidation Of The ’466 Patent
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`Uniloc’s continued assertion of U.S. Patent No. 7,069,293 (“the ’293 patent”) and U.S.
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`Patent No. 6,324,578 (“the ’578 patent”) following the invalidation of the representative claim of
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`the ’466 patent resulted in the objectively unreasonable pursuit of a substantively meritless case.
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`-7-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 12 of 21 PageID #: 5428
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`Uniloc was obligated to consider the impact of the Prior Order on its entire case. See Inventor
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`Holdings, LLC v. Bed Bath & Beyond Inc., No. CV 14-448-GMS, 2016 WL 3090633, at *3 (D.
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`Del. May 31, 2016) (“In short, regardless of whether [plaintiff] initially felt that it had a plausible
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`claim, [plaintiff] had an obligation to reevaluate its case in light of subsequent decisions.”). That
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`obligation is particularly acute here, where the three patents-in-suit “are all part of a family of
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`patents drawn toward addressing the inefficiencies in application management in client-server
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`environment,” share similar specifications, and the parent patents cross-reference to one another.
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`Dkt. 267 at 3 n.5. Any reasonable assessment of the merits of Uniloc’s case following the Prior
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`Order would have resulted accepting the conclusion that the Court’s reasoning rendered the
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`additional patents-in-suit invalid.
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`As with the ’466 Patent, the claims of the ’578 [patent] are overly vague in that they
`recite “executing the application program using the obtained user set and the
`obtained administrator set [of preferences],” e.g., ’578 Patent, col. 15:10–12,
`without claiming any “particular way of programming or designing the software”
`to facilitate execution of the program according to the claim. See [Prior Order] at
`11.
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`Id. at 12. Similarly, the Court highlighted that the claims of the ’293 patent and ’578 patent, like
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`the invalidated claims of the ’466 patent, “provide for off-the-shelf components,” “include[] only
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`generic activities of servers,” and “rel[y] upon generic computer components used in a routine
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`arrangement,” which do not render them patentable. Id. at 14, 22; see also Prior Order at 15
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`(“[T]he claims [invalidated in the ’466 patent] rely upon only generic computer components used
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`in a routine arrangement.”). The claims of the ’293 and ’578 patents also “recite generic electronic
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`recordkeeping functions,” Dkt. 267 at 22, 24, which “[t]he Court has already explained [in the
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`Prior Order] . . . do not provide an inventive concept,” id. at 20.
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`Rather than acknowledge the impact of the Prior Order, Uniloc proceeded to make
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`arguments for the ’293 and ’578 patents that the Court had already rejected. For example, Uniloc
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`-8-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 13 of 21 PageID #: 5429
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`argued that the ’578 patent claimed patentable subject matter because it “‘seeks to reduce costs
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`and increase uniformity in managing software.’” Id. at 10; see also id. at 21. The Court expressly
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`rejected this argument in the Prior Order. See id. at 23; see also id. at 12 (“The Court has already
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`held that the kind of benefits [computers] provide—“increased efficiency” or “reduced costs”—
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`are not technological benefits.’”). Likewise, “as with the ’466 and ’766 patents, Uniloc [did] not
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`identify any limiting language to suggest that an inventive concept could exist as to [the] dependent
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`claims” of the remaining patents. Id. at 23. Uniloc failed to distinguish any of these points when
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`the Court presented it with the opportunity to do so in the supplemental briefing regarding the
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`impact of the Prior Order on Big Fish’s pending motion to dismiss.
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`Uniloc “maintained its suit in the face of clear evidence that the three patents were invalid,
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`grasping at exceptionally weak legal arguments to save its patents, and needlessly forcing
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`Defendants to incur the costs of litigation.” Auto. Techs., 744 F. Supp. 2d at 654; see also Edekka,
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`2015 WL 9225038, at *4. This further merits an exceptional case finding.
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`IV. UNILOC’S UNREASONABLE LITIGATION CONDUCT WARRANTS AN
`EXCEPTIONAL CASE FINDING AND ATTORNEYS’ FEES
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`“[U]nder Octane Fitness, the district court must consider whether the case was litigated in
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`an unreasonable manner as part of its exceptional case determination.” Edekka, 2015 WL
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`9225038, at *4 (quoting SFA Sys., LLC v. Newegg, Inc., 793 F.3d 1344, 1349 (Fed. Cir. 2015)).
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`Here, in addition to the objectively unreasonable basis for continuing its action against Big Fish,
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`Uniloc’s improper and pervasive litigation conduct provides an additional, independent basis for
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`finding the case exceptional and awarding attorneys’ fees.
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`A.
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`Uniloc Failed To Comply With The Patent Local Rules With Respect To
`Claim Construction, And Repeatedly Changed Its Positions
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`
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`This Court’s Patent Local Rules are “designed specifically to ‘require parties to crystallize
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`their theories of the case early in the litigation’ so as to ‘prevent the ‘shifting sands’ approach to
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`-9-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 14 of 21 PageID #: 5430
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`claim construction.’” O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1364
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`(Fed. Cir. 2006) (citations omitted). Uniloc’s vague and ever-changing claim construction
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`positions warrant an exceptional case finding. See Oplus Techs., Ltd. v. Vizio, Inc., 782 F.3d 1371,
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`1374 (Fed. Cir. 2015) (finding the case exceptional where plaintiff’s “litigation positions, expert
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`positions, and infringement contentions were a constantly moving target, ‘a frustrating game of
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`Whac–A–Mole throughout the litigation.’”).
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`Nearly two-thirds of the asserted claims were in means-plus-function format. See Dkt. 262
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`at 3. Yet, in clear violation of P.R. 4-2(a), which obligated Uniloc to identify the structures
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`corresponding to each means-plus-function element, Uniloc refused to identify a single structure.
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`See Dkt. 218 at 1. Uniloc’s initial P.R. 4-2 exchange simply listed multiple columns of contiguous
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`patent specification text without identifying any particular structures within that text corresponding
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`to the claimed functions. Id. at 1-2. Uniloc continued to cite wholesale sections of various patents,
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`some of which were not even asserted, without identifying where any structures could be found in
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`the cited paragraphs throughout the parties’ claim construction negotiation process. See Dkt. 262
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`at 4.
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`Prior to claim construction briefing, the parties agreed to the construction of two critical
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`terms. Yet, after claim construction briefing was complete, and on the eve of filing the parties’
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`P.R. 4-5(d) chart, Uniloc rescinded its agreement on these two terms. Id. Uniloc attempted to
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`label its reversal a “mistake,” but refused to retract them. Dkt. 198 at 1. When Defendants sought
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`relief from the Court due to the resulting prejudice, Uniloc accused them of manufacturing a “ploy”
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`to delay claim construction and lobbed pejorative comments questioning Defendants’ motives.4
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`4 Dkt. 198 at 2, 3 (accusing Defendants of filing a “gotcha” motion where the requested relief,
`additional briefing, was a sham); id. at 3 (“As of tomorrow, [Defendants’] eight national firms
`would have had 13 days to draft something. Let’s see what they do”).
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 15 of 21 PageID #: 5431
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`Dkt. 198 at 2, 3. The Court expressly rejected Uniloc’s unsupported attempt to explain away its
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`abrupt change in position, stating that “[t]he changes in Plaintiffs’ positions do not reflect clerical
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`corrections but rather introduce potentially substantial changes in the scope of the two terms at
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`issue,” and agreed that Uniloc’s changes prejudiced Defendants. Dkt. 199 at 1-2.
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`Uniloc’s shifting sands approach to claim construction continued even after the Court
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`issued its claim construction order. On September 27, 2017, nearly six weeks after the Court’s
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`claim construction ruling, and well after the deadlines for both fact discovery and service of
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`opening expert reports, Uniloc filed a “motion to reconsider” a portion of the Court’s claim
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`construction order. See Dkt. 266. Contrary to the label Uniloc attached to its motion, Uniloc’s
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`motion in fact asked the Court, for the first time, to adopt divergent constructions of the same term
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`across the patents-in-suit. Id. at 2. This differs from the position Uniloc took during claim
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`construction. See Dkt. 202-1 at 2 (proposing a uniform construction for both terms across the
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`patents-in-suit).
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`Moreover, Uniloc sought to support its motion with the submission of an expert declaration
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`from a previously undisclosed expert, see Dkt. 143, in violation of P.R. 4-2(b) and P.R. 4-3(b).
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`Disclosing and attempting to rely upon a claim construction expert so late in the case—fact
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`discovery had already closed and opening expert reports had already been exchanged—further
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`illustrates Uniloc’s improper litigation conduct. See Eon-Net LP v. Flagstar Bancorp, 653 F.3d
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`1314, 1325 (Fed. Cir. 2011) (finding case exceptional based on plaintiffs’ “lack of regard for the
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`judicial system” and its “‘cavalier attitude’ towards the ‘patent litigation process as a whole.’”);
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`see also Oplus, 782 F.3d at 1374.
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`Uniloc Abused the Infringement Contention Process
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`B.
`As detailed in Big Fish’s Motion to Strike, Uniloc’s initial and supplemental infringement
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`
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`contentions were wholly deficient. See Dkt. 262. In many instances, Uniloc simply copied the
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`-11-
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`Case 2:16-cv-00741-RWS Document 276 Filed 11/03/17 Page 16 of 21 PageID #: 5432
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`language of each claim element into its claim charts and stated, without any support, that the
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`accused Big Fish product performed each limitation. Uniloc also failed to identify any
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`corresponding structures for the means-plus-function terms, instead simply cross-referencing each
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`element of those claims to the steps in the method claims. Id. at 3.
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`Additionally, despite reviewing Big Fish’s source code on July 17 and 18, 2017, Uniloc
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`attempted to unilaterally delay its compliance with the 30-day deadline to supplement due to
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`source code review. Dkt. 262 at 4-5. Given that Big Fish was still accused of infringing 60 claims,
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`had received no substantive information regarding Uniloc’s infringement theory, and had just over
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`a month remaining until the close of fact discovery, Uniloc’s baseless arguments to delay
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`supplementation by at least another 30 days was improper. Id. at 5, 9-10. When Uniloc finally
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`served its supplemental infringement contentions less than one month before the close of fact
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`discovery, it still failed to identify any structures or algorithms corresponding to the recited
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`functions, much less match one to a specific structure or algorithm in Big Fish’s software, as
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`required by P.R. 3-1(c). See id. at 6-11. Instead, Uniloc’s contentions for the mean-plus-function
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`claims simply cross-referenced to other method claims, some of which had already been
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`invalidated by the Court.5
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`Further, Un