Case 2:16-cv-00741-RWS Document 323 Filed 08/16/19 Page 1 of 20 PageID #: 6040
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`UNILOC USA, INC., et al,
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`Plaintiffs,
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`v.
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`
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`ADP, LLC,
`BIG FISH GAMES, INC.,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§ Case No. 2:16-cv-00741-JRG
`§
`
`LEAD CASE
`§
`§
`§ Case No. 2:16-cv-00858-JRG
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`JOINT STATUS REPORT
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`Pursuant to the Court’s Order of August 5, 2019, Dkt. No. 322, Plaintiffs, Uniloc USA,
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`Inc., and Uniloc Luxembourg, S.A. (collectively, “Uniloc”), and Big Fish Games, Inc. (“Big
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`Fish”),1 hereby provide the following joint status report listing the issues remaining on remand and
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`propose a schedule for resuming proceedings.
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`I.
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`BACKGROUND
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`Pursuant to the Fourth Amended Docket Control Order of March 29, 2017, Dkt. No. 143,
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`discovery closed on September 18, 2017, and the parties served disclosures for expert witnesses
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`by the parties with the burden of proof on September 22, 2017. Shortly thereafter, on September
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`28, 2017, this Court’s Memorandum Opinion and Order (Dkt. No. 267) (“§ 101 Order”) dismissed
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`the case, concluding that:
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`Defendants have shown that claims 3–5, 8, 9, 13, 15–20, 22–24, 28–33, 35–37, 41
`and 42 of the ’466 Patent, claims 5, 7, 9, 11, 13, 15 and 17 of the ’766 Patent, claims
`1–8, 10–39 and 41–46 of the ’578, and claims 1, 12 and 17 of the ’293 Patent are
`drawn to ineligible subject matter and, therefore, invalid. Accordingly, the Motion
`to Dismiss (Docket No. 17) is GRANTED as to those claims. The Motion is
`DENIED as to any unasserted patent claims. The Motion is DENIED AS MOOT
`as to Defendants’ motion to dismiss the claims for infringement of the ’293 Patent
`for failure to plead sufficient factual allegations.
`
`
`1
`All other defendants have been dismissed from the cases that had been related. However,
`the co-pending case against Kaspersky Lab, Inc., 2:16-cv-00871-RWS (E.D. Tex.), has also been
`remanded.
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`1
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`Dkt. No. 267 at 25.
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`On May 24, 2019, the Federal Circuit reversed this Court’s dismissal as to the ’293 and
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`’578 patents, and affirmed the dismissal as to the ’466 and ’766 patents. See Dkt. No. 317. Big
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`Fish (along with Kaspersky Lab, Inc., a defendant in a parallel case) petitioned for panel rehearing.
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`That petition was denied, see Dkt. No. 320, and the mandate issued on July 18, 2019, see Dkt. No.
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`321.
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`II.
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`REMAINING ASSERTED CLAIMS
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`Shortly before the Court’s § 101 Order, Uniloc made its final election of asserted claims.
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`Following the Federal Circuit’s opinion, on remand the following asserted claims remain: claims
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`1, 8, 17, 27, and 30 of the ’578 patent, and claims 1, 12, and 17 of the ’293 patent.
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`III. REMAINING ISSUES
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`A.
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`Reopening Discovery
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`As noted above, discovery closed just prior to the Court’s order dismissing the case.
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`1.
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`Uniloc’s Position
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`Although discovery did close in this case, that was nearly two years ago. An unknown
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`amount of additional infringement has occurred since. Further, Big Fish may have changed its
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`systems in the interim. And, as will be discussed below, there were live discovery disputes. As
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`such, Uniloc proposes to briefly reopen discovery. The parties would be required to promptly
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`produce any new materials that would otherwise be required pursuant to the Court’s Patent Local
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`Rules, and to provide one or more witnesses for deposition as appropriate.
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`2.
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`Big Fish’s Position
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`Prior to the Court’s § 101 Order, the parties had completed fact discovery on September
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`18, 2017, and served opening expert reports on September 22, 2017. Both parties had an
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`opportunity to fully develop the factual record prior to the close of fact discovery. Accordingly,
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`Uniloc’s request to reopen discovery without limitation should be denied.
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`Fully reopening the discovery period is unwarranted and unnecessary at this late procedural
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`juncture in the case. While Big Fish preserved certain fact discovery issues by filing motions to
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`compel specific categories of documents and proper answers to specific interrogatories prior to the
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`fact discovery deadline, Uniloc had not filed any discovery motions. Instead, only after the fact
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`discovery deadline, Uniloc served alleged “final infringement contentions” and sought production
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`of damages-related documents. Uniloc’s proposal to reopen fact discovery is therefore an attempt
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`to rectify its discovery errors and backfill the gaps in its factual infringement and damages theories.
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`However, to the extent that Uniloc is concerned about fact issues that may have come about
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`in the intervening period after the Court’s § 101 Order and the Federal Circuit remand, Big Fish
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`agrees a limited discovery scope and period is appropriate. Big Fish therefore proposes a two-
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`month period during which the parties serve amended Rule 26(a) and (e) disclosures and serve
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`amended interrogatory responses and/or amended requests for admission responses, as necessary,
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`and depose any newly disclosed witnesses, provided that this discovery is limited solely to matters
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`that need to be supplemented due to changes in law or fact that occurred after the Court’s § 101
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`Order. In no event should the parties be permitted to serve any other disclosures or submit
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`discovery requests unrelated to changes in law or fact that occurred after the Court’s § 101 Order.
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`B.
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`Adding Uniloc 2017 LLC as a Plaintiff
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`The Uniloc entities entered into a series of transactions in mid-2018, which transactions
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`ultimately resulted in the patents being reassigned to a new, related entity, Uniloc 2017 LLC.
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`1.
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`Uniloc’s Position
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`The Federal Circuit has added Uniloc 2017 to this action, over Big Fish’s objection. See
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`Dkt. No. 317 at 3-6. Uniloc will request the Court to amend the district court caption to reflect the
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`Federal Circuit’s ruling.
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`2.
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`Big Fish’s Position
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`Big Fish does not oppose Uniloc’s request to add Uniloc 2017 as a party, provided that
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`Uniloc, within 14 days of a Court order granting Uniloc’s requested relief, produce all documents
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`and agreements between or among the existing plaintiffs and Uniloc 2017, all documents related
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`to standing, and all documents evidencing the “series of transactions” that Uniloc referenced
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`above. Further, Big Fish requests that Uniloc amend its discovery responses, if necessary, to
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`account for the inclusion of Uniloc 2017 within the same 14-day period. As the record before the
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`Federal Circuit makes clear, Uniloc 2017 received an interest in the patents as of May 2018, but
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`took no action to inform the Court, the Federal Circuit, or Big Fish. Accordingly, Uniloc should
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`not be permitted to delay production of these documents, which are necessary to understand the
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`relationship between the plaintiffs and assess the need for deposition discovery of Uniloc 2017, by
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`forcing Big Fish to make written requests to which Uniloc may interpose objections.
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`C.
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` Uniloc’s Motion to Reconsider a Portion of this Court’s Memorandum
`Opinion and Order Construing Certain Terms
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`On September 27, 2017, Uniloc filed a motion for reconsideration of the Court’s Opinion
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`and Order regarding claim construction. Dkt. No. 266. The motion was denied as moot the next
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`day. Dkt. No. 267.
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`1.
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`Uniloc’s Position
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`Uniloc will resubmit the previously filed motion, with two modifications: 1) deletion of
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`any requests as to the ’466 or ’766 patents, as those patents are no longer in the case; and 2) update
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`as to developments in the law since its filing.
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`Big Fish asks the motion be bifurcated, with the motion to “address” procedural issues and
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`then to “address” the merits. The Court may, of course, address the issues in any order it chooses,
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`but the motion itself will brief the merits, to assure a complete record. Big Fish can raise any
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`procedural objections in its opposition, and then Uniloc will respond to those in its reply.
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`After the Federal Circuit’s decision, Uniloc 2017 refiled a number of actions on the ‘578
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`and ‘293 patents. There are now actions against 16 other defendants pending on those patents,
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`with 13 of them in other districts before 9 different judges.2 Uniloc 2017 expects those courts will
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`benefit from this Court’s decision on the merits of the motion for reconsideration.
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`2.
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`Big Fish’s Position
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`As Uniloc notes, Uniloc filed its motion for reconsideration the day before the Court’s
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`§ 101 Order, and, therefore, Big Fish has not filed its response in opposition. Nevertheless,
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`Uniloc’s motion for reconsideration was, at the time it was originally filed, untimely. Nothing
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`about the intervening delay in this case due to Uniloc’s appeal changes the untimeliness of its
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`motion. Instead, Uniloc seeks to undo one of the Court’s constructions in order to obtain a more
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`advantageous position regarding its infringement contentions in the later-filed cases, which Uniloc
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`expressly mentions above. In fact, Uniloc has asserted the same claim construction position it now
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`seeks from this Court in one of the later-filed cases. See Dkt. No. 233 (discussing Uniloc’s claim
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`construction briefing in Uniloc USA, Inc. v. NetSuite, Inc., Case No. 2:16-cv-00862-RWS). Thus,
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`Uniloc’s motion is not intended to aid the courts in the later-filed cases, but is meant to avoid
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`having those courts reject Uniloc’s new position as inconsistent with the positions it took before
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`this Court in this case.
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`2
`There are also five actions, Nos. 2-19-cv-00219, -220, -221, -223 and -224, in this
`District, currently assigned to Judge Gilstrap.
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`5
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`Additionally, changing the claim construction at this juncture of the case would create the
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`potential need for additional fact and expert discovery, as well as already-filed expert reports.
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`Further, Uniloc’s motion for reconsideration is predicated upon an untimely and
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`procedurally improper extrinsic, expert declaration that was not submitted during the claim
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`construction process, as required under the Local Patent Rules. Moreover, in order to properly
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`respond to Uniloc’s improperly submitted expert declaration absent a preliminary ruling on the
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`admissibility of that declaration, Big Fish not only would need to conduct discovery, including
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`document discovery and a deposition, but also likely retain an expert of its own to provide a
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`counter-expert declaration, which will prolong the schedule and increase the burden on Big Fish
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`and the Court.
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`Notwithstanding the above objections, Big Fish appreciates that this filing is not the proper
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`means of objecting to any motion. Therefore, while Big Fish does not oppose Uniloc’s request to
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`renew its motion for reconsideration in accordance with the proposed deadline for renewing
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`motions laid out below, Big Fish respectfully requests that the motion be bifurcated in order to
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`first address the procedural issue of the motion’s timeliness and the admissibility of Uniloc’s
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`expert declaration, and following the Court’s ruling on those issues, to address the merits, should
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`it be necessary.
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`D.
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`Big Fish’s Motions Pending Prior to the Court’s § 101 Order
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`The following motions listed below were pending prior to the Court’s § 101 Order.
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`• Defendants’ Motion for Leave to File Supplemental Claim Construction Brief (Dkt. No.
`217), filed on August 1, 2017 / Proposed Supplemental Claim Construction Brief (Dkt. No.
`218), filed on August 2, 2017 (per Clerk’s instructions).
`
`a. Relief Requested: Defendants’ Motion requested leave to file a supplemental brief
`that at least one means-plus-function (MPF) limitation governed by 35 U.S.C. 112,
`¶ 6 in each of the remaining asserted MPF claims is indefinite for lack of
`corresponding algorithmic structure disclosed in the specification. The Court has
`not construed any of the asserted MPF limitations.
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`b. Status: Defendant’s Motion was fully briefed, but not ruled upon.
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`• Defendants’ Motion to Compel Production of Documents (Dkt. No. 229), filed on August
`11, 2017.
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`a. Relief Requested: Defendants’ Motion sought an order compelling five categories
`of documents.
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`b. Status: Defendants’ motion was fully briefed, but not ruled upon.
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`• Big Fish’s Motion to Compel Interrogatory Responses (Dkt. No. 263), filed on September
`18, 2017.
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`a. Relief Requested: Big Fish’s Motion sought to compel Uniloc to provide
`supplemental responses to Interrogatory Nos. 2-4, 6, and 8- 13 in Defendant’s First
`Set of Individual Interrogatories.
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`b. Status: Uniloc had not filed its response prior the Court’s § 101 Order.
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`• Big Fish’s Motion to Strike Infringement Contentions (Dkt. No. 262), filed on September
`18, 2017.
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`a. Relief Requested: Big Fish’s Motion sought to strike Uniloc’s supplemental
`infringement contentions for failing to identify: (1) the corresponding structure
`allegedly disclosed in the specification for the limitations drafted in MPF form; or
`(2) the allegedly infringing structure in the accused Big Fish platform for the
`asserted MPF limitations.
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`b. Status: Uniloc had not filed its response prior the Court’s § 101 Order.
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`1.
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`Big Fish’s Position
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`Big Fish requests that it be permitted to renew these previously pending motions as the
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`outcome of the motions will have a substantive impact and will assist the Court and the parties in
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`determining what, if any, claims remain for trial. Accordingly, Big Fish’s proposed schedule
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`includes a deadline for renewing motions.
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`While Uniloc does not object the refiling of these motions, it extraneously contends that
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`“some” of the motions are “perplexing . . . given the status of the case.” With respect to Big Fish’s
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`Motion to Strike Infringement Contentions (Dkt. No. 262), Uniloc contends that the intervening
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`two-year delay following this Court’s dismissal and the Federal Circuit remand cures its violation
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`of Local Rule 3-6(b) by serving supplemental infringement contentions out of time and without
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`leave of the Court and subsequently, again without leave of the Court and after the close of fact
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`discovery, serving “final infringement contentions” that bear no resemblance to either of Uniloc’s
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`prior infringement contentions. Uniloc’s argument that the motion is moot because any prejudice
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`has been cured by the passage of time – during which time the case was dismissed – is without
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`basis. Similarly, Uniloc’s assertion that Big Fish’s Motion to Compel Interrogatory Responses
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`(Dkt. No. 263) is mooted by the service of Uniloc’s expert reports not only ignores the full scope
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`of the discovery that Big Fish has been forced to seek Court intervention to obtain, but also makes
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`light of Uniloc’s discovery obligations and the issue of fairness. Big Fish’s motion for attorneys’
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`fees, which it filed after this Court granted Big Fish’s motion to dismiss, outlines numerous
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`instances of Uniloc’s flagrant violation of the Federal Rules of Civil Procedure and the Local
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`Rules. Uniloc’s position below is little more than a continuation of its disregard for the rules.
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`2.
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`Uniloc’s Position
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`Uniloc does not oppose resubmission of motions that were previously filed. That said,
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`some of them are perplexing, given the status of the case.
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`Uniloc did not have the opportunity to oppose Big Fish’s Motion to Strike Infringement
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`Contentions (Dkt. No. 262). Uniloc served Supplemental Infringement Contentions on August 21,
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`2017. Uniloc thereafter served Final Infringement Contentions on September 18, 2017, and its
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`opening expert reports on infringement on September 22, 2017. Insofar as Big Fish has been in
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`possession of Uniloc’s most up-to-date and detailed infringement contentions for nearly two years
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`now, Uniloc believes that Big Fish’s motion has been mooted.
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`Uniloc did not have the opportunity to oppose Big Fish’s Motion to Compel Interrogatory
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`Responses (Dkt. No. 263). Uniloc served Final Infringement Contentions on September 18, 2017.
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`And, Uniloc served its opening expert reports on infringement and damages on September 22,
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`2017. These contentions and reports answer all of Big Fish’s interrogatories to the fullest extent
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`Uniloc had any such information to give. As such, Uniloc believes that Big Fish’s motion has
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`been mooted.
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`E.
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`Uniloc’s Final Infringement Contentions Served Prior to the Court’s § 101
`Order
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`On September 22, 2017, prior to the Court’s § 101 Order, Uniloc served Final Infringement
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`Contentions.
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`1.
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`Big Fish’s Position
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`On September 22, 2017, after the close of fact discovery and well after the deadline for
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`serving infringement contentions, Uniloc served what it referred to as “Final Infringement
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`Contentions.” On that same date, which was also the deadline for opening expert reports, Uniloc
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`served the Expert Report of William C. Easttom II Regarding Infringement, which included as
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`exhibits the exact same claim charts that Uniloc served earlier that day as “Final Infringement
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`Contentions.” Big Fish objected to Uniloc’s “Final Infringement Contentions” as untimely, as
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`well as their inclusion in Uniloc’s expert report to the extent that they contained new bases for
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`infringement that Uniloc did not previously disclose to Big Fish during fact discovery in the
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`required and permissible disclosures under the Patent Local Rules.
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`Prior to the Court’s § 101 Order, the parties conferred regarding this issue. Although
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`Uniloc agreed to withdrawal its Final Infringement Contentions, the parties did not reach a
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`resolution regarding the inclusion of Uniloc’s Final Infringement Contentions in Mr. Easttom’s
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`report. If the parties cannot reach an agreement regarding this issue, Big Fish intends to file a
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`motion to strike portions of the Mr. Easttom’s report.
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`Uniloc’s position – to circumvent its obligation to have timely and properly disclosed its
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`infringement contentions by simply substituting its expert report as its “most recent contentions”
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`and suggesting that Big Fish is not prejudiced by an intervening time period during which the case
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`was dismissed – only further establishes Uniloc’s disregard for the rules, as articulated above.
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`2.
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`Uniloc’s Position
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`Uniloc proposes to treat the parties’ opening expert reports as their most recent contentions,
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`both as to infringement and invalidity. Big Fish has been in possession of Mr. Easttom’s
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`infringement report—with the attached charts—for nearly two years. It is difficult to understand
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`what possible prejudice Big Fish might allege.
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`F.
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`Remaining Factual Issues Regarding the Conventionality of Claim Elements
`in the Determination of Patent Ineligibility of the ’578 Patent and
`the ’293 Patent
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`On May 25, 2019, the Federal Circuit issued a nonprecedential opinion affirming this
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`Court’s § 101 Order invalidating the asserted claims of the ’466 Patent and the ’766 Patent as
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`directed to patent ineligible subject matter, and reversing this Court’s determination that the
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`asserted claims the ’578 Patent and the ’293 Patent are directed to patent ineligible subject matter,
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`and remanding for further proceedings with respect to the ’578 Patent and the ’293 Patent.
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`1.
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`Big Fish’s Position
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`The Federal Circuit’s nonprecedential opinion left unresolved factual issues regarding the
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`conventionality of certain claim elements in the determination of patent ineligibility with respect
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`to the asserted claims of the ’578 Patent and the ’293 Patent. In reversing this Court’s
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`determination of ineligibility with respect to the ’578 Patent and the ’293 Patent, the Federal
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`Circuit panel reasoned that, despite the specification’s identification of pre-existing, commercially
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`available software and servers, insufficient evidence existed in the limited record on Big Fish’s
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`Motion to Dismiss to establish that the claimed use of computer elements were so conventional
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`that they should be excluded from the abstract idea determination. See Dkt. No. 317 at p. 11
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`(“There is nothing in the record to suggest that such network architecture [in the ’293 Patent] was
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`so conventional as to exclude that architectural limitation in framing what the claims are ‘directed
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`to.’”); see also id. at 14 (stating that claim 1 of the ’578 Patent “is directed to a particular way of
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`using a conventional application server,” rather than a conventional use of an application server);
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`id. at 15 (“There has been no showing or determination that such a network architecture [in the
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`’578 Patent] was conventional.”).
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`In view of the procedural posture of Big Fish’s Motion to Dismiss, the Federal Circuit’s
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`reasoning in its opinion, and other recent Federal Circuit opinions rendered after the Court’s § 101
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`Order that have altered the § 101 inquiry by injecting factual determinations of conventionality,
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`see, e.g., Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018), Big Fish requests leave to
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`serve a supplemental expert report regarding the conventional functions and capabilities of the
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`commercially available computer components identified in the specification. See id. (“The
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`question of whether a claim element or combination of elements is well-understood, routine and
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`conventional to a skilled artisan in the relevant field is a question of fact.”).
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`Big Fish’s proposed schedule includes a deadline for service of a supplemental expert
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`report regarding this specific topic. If the Court would like additional briefing regarding this issue,
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`Big Fish requests that it be permitted to file a motion and memorandum in support of its request
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`for leave. Uniloc’s contention that Big Fish cannot argue issues of conventionality is a plain
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`misreading of the Federal Circuit’s decision.
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`2.
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`Uniloc’s Position
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`Big Fish cannot advance the above argument. The Federal Circuit found “the claims in the
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`’293 patent are not directed to an abstract idea,” Dkt. No. 317 at 13, deciding the eligibility issue
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`as to that patent at step one. Similarly, the court held that what the claims of the ’578 patent are
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`directed to “is not an abstract idea under Alice step one.” Id. at 14. Under the mandate rule, this
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`Court cannot deviate from those appellate rulings. Having decided the issue at step one, the court
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`“need not proceed to Alice step two.” Id. at 13.
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`Big Fish emphasizes the decision was nonprecedential, but that does not mean this Court
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`can ignore it.
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`G.
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`Big Fish’s Affirmative Defenses: New Issues of Standing Arising After the
`Court’s § 101 Order
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`1.
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`Big Fish’s Position
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`Due to developments after the Court’s § 101 Order, which Big Fish recently learned from
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`a lawsuit filed in this Court by ADP, LLC (“ADP”) against Uniloc on February 1, 2019,
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`2:19-cv-15-RWS, Big Fish asserts that Uniloc has now lost the requisite exclusionary rights to the
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`’578 Patent and the ’293 Patent due to reversionary rights triggered by a breach of Uniloc’s license
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`agreement to the patents-in-suit as alleged by ADP. See Dkt. No. 4, 2:19-cv-15-RWS (E.D. Tex.,
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`Feb. 4, 2019). As a matter of law, because Uniloc can suffer no legal injury, Big Fish asserts that
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`Uniloc lacks the constitutional standing necessary to maintain claims against Big Fish.
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`Big Fish moved to dismiss Uniloc’s appeal on this basis, but the Federal Circuit denied the
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`motion because of underlying factual and legal issues yet to be resolved in ADP’s lawsuit against
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`Uniloc, which remains pending. Big Fish requests leave of Court to amend its affirmative defenses
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`to include a defense for lack of standing to preserve the right to assert this defense should ADP
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`prevail on its claims against Uniloc. Accordingly, Big Fish’s proposed schedule includes a
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`deadline to amend its affirmative defenses for this purpose.
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`Uniloc’s contention that Big Fish cannot argue issues of standing is a plain misreading of
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`the Federal Circuit’s decision.
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`2.
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`Uniloc’s Position
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`The Federal Circuit decided this issue, rejecting Big Fish’s position. The decision did not
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`state there were “underlying factual and legal issues yet to be resolved,” as Big Fish wishfully
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`states. Nor did it remand for further proceedings on this issue.
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`During the appeal, Big Fish (and several other appellees) moved to dismiss, arguing that
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`Uniloc had lost standing because (1) Uniloc breached an agreement with IBM, a third-party; (2)
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`the breach had given IBM the right to sublicense the patents Uniloc owned; and (3) that right to
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`sublicense deprived the court of jurisdiction over this action based upon those patents. This
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`Federal Circuit disagreed. Dkt. No. 317 at 6-8.
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`In explaining its decision, the Federal Circuit stated, among other things: “[m]ovants have
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`not shown,” “[m]ovants cite no other basis,” “they do not assert,” and “[m]ovants have not pointed
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`to . . . .” Id. In thus chronicling Big Fish’s failures of proof, the court did not state Big Fish would
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`get another shot, nor suggest that its ruling on this issue was anything other than final. Under the
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`mandate rule, this Court cannot revisit the standing issue.
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`IV.
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`PROPOSED SCHEDULE
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`The original Docket Control Order was entered on November 21, 2016. Dkt. No. 87. It
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`was subsequently amended on November 22, 2016, Dkt. Nos. 92 & 93; December 6, 2016, Dkt.
`
`No. 105; January 26, 2017, Dkt. No. 130; and March 29, 2017, Dkt. No. 143. In each instance,
`
`discovery was set to close on September 18, 2017, opening expert reports were due on September
`
`22, 2017, and jury selection was set for four-and-one-half-months later on February 5, 2018.
`
`Uniloc’s Position:
`
`Uniloc proposes to briefly reopen discovery to address the intervening two years, and any
`
`loose ends remaining from two years ago. The parties would then file supplemental expert reports
`
`and resume the case schedule. The parties were approximately four-and-one-half months from
`
`
`
`13
`
`

`

`Case 2:16-cv-00741-RWS Document 323 Filed 08/16/19 Page 14 of 20 PageID #: 6053
`
`trial at the time this Court dismissed the case; so, Uniloc proposes to promptly get to trial once the
`
`additional discovery is completed. Towards that end, Uniloc’s proposed schedule simply and
`
`consistently moves every one of the deadlines backwards about 25 months, to account for the
`
`intervening two years and the additional discovery. Big Fish’s schedule starts 25 months back
`
`from the original deadlines, but inexplicably expands to 28 months by the end.
`
`Uniloc also adheres to this Court’s standard Docket Control Order, and notes that Big Fish
`
`attempts to insert a number of additional events. Insofar as those deadlines were not found in any
`
`of the prior Docket Control Orders, Uniloc does not believe it is appropriate to add them now.
`
`Big Fish’s Position:
`
`Big Fish opposes any request to wholly reopen fact discovery as stated above and does not
`
`believe it is appropriate to permit unfettered fact discovery into whatever “loose ends” Uniloc now
`
`wishes to address after the original close of fact discovery. Rather, Big Fish proposes a limited
`
`discovery scope and period solely to address any new matters that have arisen since the Court’s
`
`§ 101 Order. Big Fish requests that the Court enter a deadline by which to renew their previously
`
`pending motions as the outcome of the motions will have a substantive impact and will assist the
`
`Court and the parties in determining what, if any, claims remain for trial. Big Fish then proposes
`
`that the case schedule resume during the expert report and expert discovery phase—the phase when
`
`the case was dismissed—after a reasonable period of time for the parties and their respective
`
`experts to reacquaint themselves with the issues in this case and in view of other now pre-existing
`
`commitments. Big Fish’s proposed deadlines are based on the default deadlines in the Court’s
`
`Docket Control Model Order for Patent Cases.
`
`
`
`
`
`
`
`14
`
`

`

`Case 2:16-cv-00741-RWS Document 323 Filed 08/16/19 Page 15 of 20 PageID #: 6054
`
`Original Date
`
`Uniloc’s
`Proposal
`February 5, 2018 Early
`March
`2020,
`at
`the
`Court’s
`convenience.
`
`Big Fish’s
`Proposal
`Early June 2020,
`at the Court’s
`convenience
`
`Case Event
`
`9:00 a.m. JURY SELECTION in
`Texarkana, Texas before Judge
`Robert W. Schroeder, III.
`
`January 8, 2018 Mid-February
`2020,
`at
`the
`Court’s
`convenience.
`
`Early May 2020,
`at the Court’s
`convenience
`
`PRETRIAL
`a.m.
`9:00
`in Texarkana,
`CONFERENCE
`Texas before Judge Robert W.
`Schroeder, III.
`
`
`
`
`
`
`
`
`
`April 17, 2020
`
`April 17, 2020
`
`
`
`January 4, 2018
`
`January 17, 2020 April 13, 2020
`
`January 4, 2018
`
`January 17, 2020 April 10, 2020
`
`File a Notice of Time Requested for
`(1)
`voir
`dire,
`(2)
`opening
`statements, (3) direct and cross
`examinations, and
`(4) closing
`arguments.
`
`File Responses
`Limine
`
`to Motions
`
`in
`
`*Notify Court of Agreements
`Reached During Meet and Confer
`
`
`
`The parties are ordered to meet and
`confer
`on
`any
`outstanding
`objections or motions in limine.
`The parties shall advise the Court of
`any agreements reached no later
`than 1:00 p.m. three (3) business
`days before the pretrial conference.
`
`*File Joint Pretrial Order, Joint
`Proposed Jury Instructions, Joint
`Proposed Verdict Form, Responses
`to Motions in Limine, Updated
`Exhibit Lists, Updated Witness
`Lists, and Updated Deposition
`Designations
`
`
`
`15
`
`

`

`Case 2:16-cv-00741-RWS Document 323 Filed 08/16/19 Page 16 of 20 PageID #: 6055
`
`December
`2017
`
`28,
`
`January 10, 2020 April 3, 2020
`
`December
`2017
`
`18,
`
`January 3, 2020 April 10, 2020
`
`December
`2017
`
`December
`2017
`
`18,
`
`January 3, 2020 April 3, 2020
`
`4,
`
`December
`2019
`
`20,
`
`March 27, 2020
`
`November
`2017
`
`27,
`
`December
`2019
`
`13,
`
`March 13, 2020
`
`
`
`
`
`October 30, 2017 November
`2019
`
`15,
`
`Late-February /
`Early March,
`2020, at the
`Court’s
`convenience
`
`January 3, 2020
`
`*File Notice of Request for Daily
`Transcript or Real Time Reporting.
`
`If a daily transcript or real time
`reporting of court proceedings is
`requested for trial, the party or
`parties making said request shall
`file a notice with the Court and e-
`mail the Court Reporter, Shelly
`Holmes,
`at
`shelly_holmes@txed.uscourts.gov.
`File Motions in Limine
`
`The parties shall limit their motions
`in limine to issues that if improperly
`introduced at trial would be so
`prejudicial that the Court could not
`alleviate the prejudice by giving
`appropriate instructions to the jury.
`Serve Objections
`to Rebuttal
`Pretrial Disclosures
`
`to Pretrial
`Serve Objections
`Disclosures; and Serve Rebuttal
`Pretrial Disclosures
`Serve Pretrial Disclosures (Witness
`List, Deposition Designations, and
`Exhibit List) by the Party with the
`Burden of Proof
`10:00 a.m. HEARING ON ANY
`REMAINING DISPOSITIVE
`MOTIONS
`(INCLUDING
`DAUBERT MOTIONS) before
`Judge Robert W. Schroeder III, [
`], Texas.
`*File Motions to Strike Expert
`(including Daubert
`Testimony
`Motions)
`
`expert
`strike
`to
`No motion
`testimony (including a Daubert
`motion) may be filed after this date
`without leave of the Court.
`
`
`
`16
`
`

`

`Case 2:16-cv-00741-RWS Document 323 Filed 08/16/19 Page 17 of 20 PageID #: 6056
`
`October 30, 2017 November
`2019
`
`15,
`
`January 4, 2020
`
`October 30, 2017 November
`2019
`October 13, 2017 November
`2019
`
`
`
`
`15,
`
`1,
`
`December 13,
`2019
`November 22,
`2019
`November 1,
`2019
`
`September
`2017
`
`18,
`
`September
`2019
`
`30,
`
`October 25, 2019
`
`