Case: 24-2265 Document: 15 Page: 1 Filed: 09/16/2024
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`No. 2024-2265
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`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
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`VIDSTREAM LLC,
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`v.
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`TWITTER, INC.,
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`Plaintiff-Appellant,
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`Defendant-Appellee.
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`On Appeal from the United States District Court for The Northern District of
`Texas in Case No. 3:16-cv-00764-N, Judge David C. Godbey
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`APPELLEE TWITTER, INC.’S OPPOSITION TO MOTION TO EXPEDITE
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`Twitter respectfully submits that VidStream’s motion to expedite should be
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`rejected for three separate reasons. First, it is premature, as the briefing schedule in
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`this case is stayed pending resolution of Twitter’s motion for summary affirmance.
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`See Fed. Cir. R. 31(c); C.A. Dkt. 5. Second, even if the briefing schedule were not
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`stayed, the motion improperly asks this Court to rule on the precise irreparable harm
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`issue that is the subject of the motion for summary affirmance and the sole focus of
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`VidStream’s opening brief. Third, VidStream has failed to carry its burden to
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`establish that the unusual relief of expedition is warranted.
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`No. 2024-2265
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`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
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`VIDSTREAM LLC,
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`v.
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`TWITTER, INC.,
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`Plaintiff-Appellant,
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`Defendant-Appellee.
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`On Appeal from the United States District Court for The Northern District of
`Texas in Case No. 3:16-cv-00764-N, Judge David C. Godbey
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`APPELLEE TWITTER, INC.’S OPPOSITION TO MOTION TO EXPEDITE
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`Twitter respectfully submits that VidStream’s motion to expedite should be
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`rejected for three separate reasons. First, it is premature, as the briefing schedule in
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`this case is stayed pending resolution of Twitter’s motion for summary affirmance.
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`See Fed. Cir. R. 31(c); C.A. Dkt. 5. Second, even if the briefing schedule were not
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`stayed, the motion improperly asks this Court to rule on the precise irreparable harm
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`issue that is the subject of the motion for summary affirmance and the sole focus of
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`VidStream’s opening brief. Third, VidStream has failed to carry its burden to
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`establish that the unusual relief of expedition is warranted.
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`Case: 24-2265 Document: 15 Page: 2 Filed: 09/16/2024
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`At a minimum, VidStream’s proposed briefing schedule should be rejected,
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`as VidStream has suggested a schedule under which it had seven weeks to prepare
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`its opening brief while giving Twitter just two to respond.
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`BACKGROUND
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`1. This case began in March 2016, when Youtoo Technologies filed suit
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`against Twitter alleging Twitter infringed three patents related to uploading video
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`content to the Internet. See D. Ct. Dkt. 1. When Youtoo went bankrupt in late 2017,
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`the district court sua sponte stayed the litigation for over two years. D. Ct. Dkt. 161
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`App.5.1 VidStream purportedly acquired ownership over the three patents in April
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`2018 and appeared in parallel Patent Office proceedings and on appeal, but did not
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`attempt to substitute itself as a plaintiff in the underlying district court litigation until
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`March 2020. See C.A. Dkt. 5 at 3 (Apple’s motion for summary affirmance).
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`VidStream’s conduct was so dilatory that Twitter filed a motion to dismiss for failure
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`to prosecute shortly after VidStream first attempted to reenter the case. See, e.g., D.
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`Ct. Dkt. 160 at 11 (collecting cases from the Fifth, First, Second, and Seventh
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`Circuits finding dismissal proper where plaintiff delayed for two years or less).
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`1 VidStream incorrectly implies (at 2) that the proceedings were stayed due to
`ongoing IPR proceedings. The public record makes clear the case was stayed due
`to the bankruptcy. See D. Ct. Dkt. 161 App.5 (district court’s assistant confirming
`“the automatic stay from the bankruptcy case”).
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`2
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`Case: 24-2265 Document: 15 Page: 3 Filed: 09/16/2024
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`The first time either Youtoo or VidStream requested a preliminary injunction
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`(based on just two claims of one patent) was January 2024. C.A. Dkt. 5 at 3.2 While
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`Twitter’s opposition identified numerous flaws in VidStream’s untimely request, the
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`district court relied on just one: VidStream’s failure to make a “sufficient showing
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`of irreparable injury.” Id. at Add. 1. As the district court observed, VidStream’s
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`“entire irreparable harm argument relies on an unsubstantiated rule” of law—i.e.,
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`that irreparable harm can be presumed if the plaintiff establishes a likelihood of
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`success on the merits and that the defendant’s infringement is ongoing. Id. at Add.
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`4 (emphasis added). Put differently, VidStream’s motion “cit[ed] the practices of
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`the Eighteenth Century English Court of Chancery” for this argument without citing
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`“any post-eBay [v. MercExchange] cases that apply the same principles.” Id. at Add.
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`3. Indeed, as explained in Twitter’s pending motion for summary affirmance, this
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`Court’s published case law rejected VidStream’s argument thirteen years ago. See
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`C.A. Dkt. 5 at 4-5.
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`2. The district court denied VidStream’s motion for a preliminary injunction
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`on July 22, 2024. C.A. Dkt. 5 at Add. 1-5. VidStream filed its notice of appeal 30
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`days later—i.e., the last possible day contemplated under the Federal Rules of
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`2 As VidStream concedes (at 2), Youtoo and VidStream are related entities “made
`up in part with individuals and investors associated with Youtoo.”
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`3
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`Case: 24-2265 Document: 15 Page: 4 Filed: 09/16/2024
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`Appellate Procedure. C.A. Dkt. 1-2 at 1; Fed. R. App. P. 4(a)(1)(A). This Court
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`docketed the case on August 28, 2024.
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`On September 3, 2024, counsel for Twitter informed VidStream that Twitter
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`would be filing a motion to summarily affirm the district court’s decision, provided
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`the basis for the motion, and asked for VidStream’s position by the following day.
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`See C.A. Dkt. 10 (“Mot.”) at Add. 10. On September 4, VidStream’s counsel for the
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`first time informed Twitter that VidStream intended to file a motion to expedite this
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`appeal and suggested that the parties discuss both motions at the same time. Id. at
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`Add. 9. Twitter’s counsel promptly called VidStream’s counsel, asked for the basis
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`for the motion to expedite, and provided Twitter’s position on why VidStream did
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`not qualify for a motion to expedite. Id. at Add. 8-9. Twitter’s counsel reiterated
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`Twitter’s position in writing in two emails sent later that day. Id. at Add. 6-8.
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`Twitter filed its motion for summary affirmance on the afternoon of
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`September 4. See C.A. Dkt. 5. Because the motion will terminate this appeal if
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`granted, this Court has sua sponte stayed the merits briefing schedule. See C.A. Dkt.
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`5 (docket entry text: “Briefing suspended pursuant to FCR 31 pending resolution of
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`the motion.”); see also Fed. Cir. R. 31(c).
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`ARGUMENT
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`“Motions to expedite proceedings are not routinely granted,” Fed. Cir. R. 27,
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`practice note, and the burden is on VidStream to show “the time for [Twitter] to file
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`4
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`Case: 24-2265 Document: 15 Page: 5 Filed: 09/16/2024
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`its brief should be shortened.” Cephalon, Inc. v. Watson Pharms., Inc., 422 F. App’x
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`893, 893 (Fed. Cir. 2011) (nonprecedential). VidStream has not come close to
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`meeting its burden.
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`First, VidStream’s motion to expedite is premature. Because Twitter’s
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`pending motion for summary affirmance would—if granted—terminate this appeal,
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`the briefing schedule has been automatically stayed pursuant to Federal Circuit Rule
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`31(c). See Eazypower Corp. v. ICC Innovative Concepts Corp., 56 F. App’x 493,
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`494 (Fed. Cir. 2003) (nonprecedential). In other words, there is no briefing schedule
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`in place to expedite until this Court resolves Twitter’s motion.
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`Second, VidStream’s motion appears to improperly ask this Court to decide
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`the very issue that is the subject of its 29-page merits brief—i.e., whether a patentee
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`can establish irreparable harm based on showing a likelihood of success on the
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`merits. Compare Mot. 5-6 with C.A. Dkt. 11. Put differently, VidStream has not
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`identified any way in which its interests are “adversely affect[ed]” by a normal
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`briefing schedule, Fed. Cir. R. 27, practice note, if this Court rightly concludes that
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`(purported) ongoing infringement is not irreparable injury.3 As the district court
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`noted, VidStream had not cited “any post-eBay case” that has adopted Vidstream’s
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`3 Confusingly, VidStream later denies relying on irreparable harm and asserts that
`its motion rests on the fact that “the parties agree that this is a one-issue appeal.”
`Mot. 8. Nothing in this Court’s rules suggest that the supposed simplicity of an
`appeal is sufficient reason for an appellant to jump its place in the line. In any event,
`this is not “a one-issue appeal.” See infra pp. 6-7.
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`5
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`Case: 24-2265 Document: 15 Page: 6 Filed: 09/16/2024
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`“unsubstantiated” irreparable harm argument. C.A. Dkt. 5 at Add. at 3-4 (emphasis
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`added). A motion to expedite is simply not the right vehicle to resolve VidStream’s
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`flawed argument in the first instance.
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`Third, and regardless, VidStream has failed to show that expedition is
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`appropriate. Indeed, that VidStream waited a month to file its notice of appeal—and
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`another three weeks to file this motion—weighs against granting VidStream’s
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`requested relief. E.g., Fed. Cir. R. 4, practice note (noting that “[t]he overall time
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`for an appeal can be accelerated by the expeditious filing of a notice of appeal” and
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`“[w]hen a party is considering seeking expedited proceedings on appeal, the party
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`should consider filing its notice of appeal … well before the applicable deadline”).
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`Vidstream first argues that expedited relief is appropriate because its appeal
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`raises a “simple question of legal interpretation” that can be “quickly” and “simply”
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`resolved. Mot. 4. Twitter agrees the issue can be “quickly” resolved on the basis
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`that VidStream’s irreparable harm argument has been expressly rejected by this
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`Court. See C.A. Dkt. 5 at 3-5 (citing Robert Bosch LLC v. Pylon Manufacturing
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`Corp., 659 F.3d 1142, 1148-1149 (Fed. Cir. 2011)). But this Court could not rule in
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`VidStream’s favor without—at a minimum—wading through the numerous
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`alternative grounds for affirmance in the record below. For example, the district
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`court had no occasion to address whether (1) VidStream’s lengthy delay in
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`requesting a preliminary injunction precludes irreparable harm, (2) the balance of
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`6
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`Case: 24-2265 Document: 15 Page: 7 Filed: 09/16/2024
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`equities favor Twitter, or (3) an injunction that requires taking down Twitter’s
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`platform in an election year is in the public interest. While VidStream (at 8-9)
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`purports to only request a ruling on the irreparable harm issue, this Court may affirm
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`the judgment below on any ground apparent in the record, e.g., Orion Technology,
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`Inc. v. United States, 704 F.3d 1344, 1351 (Fed. Cir. 2013), and considering other
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`possible grounds for denial of VidStream’s motion now would be most efficient for
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`all concerned.
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`VidStream next appears to argue that it would be “adversely affect[ed]” by a
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`normal case schedule because it is suffering the supposed “irreparable harm” of
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`continuing infringement. Mot. 5-6. Again, this theory of irreparable harm is
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`precluded by Robert Bosch for all the reasons explained in Twitter’s motion for
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`summary affirmance. See generally C.A. Dkt. 5. But even if VidStream’s legal
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`theory were correct (and it is not), VidStream does not even try to show that Twitter
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`has infringed the ’304 patent. Twitter has vigorously disputed infringement and
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`validity throughout this case, and the district court’s decision below addressed only
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`the irreparable harm issue—not likelihood of success. See C.A. Dkt. 5 at Add. 1-5.
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`Because VidStream did not lay out any infringement arguments in its motion, it
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`cannot raise them for the first time in reply. See Novosteel SA v. United States,
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`Bethlehem Steel Corp., 284 F.3d 1261, 1274 (Fed. Cir. 2002) (“[R]eply briefs reply
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`to arguments made in the response brief—they do not provide the moving party with
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`7
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`Case: 24-2265 Document: 15 Page: 8 Filed: 09/16/2024
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`a new opportunity to present yet another issue for the court’s consideration.”
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`(emphasis in original)).4
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` VidStream also asserts (at 6-7) that Twitter’s motion for summary
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`affirmance supports expedition. But—as Twitter’s counsel explained to VidStream
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`before VidStream filed its motion—the two motions are entirely distinct: “While
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`the Robert Bosch issue can be resolved expeditiously through the motion for
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`summary affirmance process, merits briefing will require addressing numerous other
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`alternative grounds for affirmance and thus will require more time.” Mot. at Add.
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`6. In addition, full merits briefing and oral argument will require both the parties
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`and this Court to expend far greater resources than will be required to resolve
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`Twitter’s five-page motion regarding the effect of Robert Bosch. VidStream’s
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`related argument (at 7) that Twitter does not “believe” in its Robert Bosch argument
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`is both wrong and irrelevant to whether expedition should be granted—an analysis
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`that turns on whether VidStream has shown expedited proceedings are appropriate.
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`See supra pp. 4-5.
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`Finally, even if this Court is inclined to expedite this appeal, it should not
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`enter VidStream’s proposed schedule. VidStream delayed a month in filing its
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`4 VidStream’s related suggestion (at 5) that expedition is warranted because this case
`has been going on for nine years actually supports Twitter. This appeal could have
`been resolved years sooner had VidStream not waited until January 2024 to file its
`preliminary injunction request.
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`8
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`Case: 24-2265 Document: 15 Page: 9 Filed: 09/16/2024
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`notice of appeal and several weeks more in filing its opening brief. See supra pp. 3-
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`4. Under the circumstances, it would be inequitable to grant Vidstream seven weeks
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`to file its opening brief and Twitter just two to respond—particularly given that
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`Twitter will need to brief not just the Robert Bosch issue, but other irreparable harm,
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`balance of the equities, and public interest arguments.5 While Twitter does not
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`oppose VidStream filing its reply brief early or (if the motion is granted) expedited
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`oral argument, Twitter submits that it should receive at least the normal forty days
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`to file its merits brief.
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`CONCLUSION
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`For the foregoing reasons, Twitter respectfully requests that this Court deny
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`VidStream’s motion to expedite or—at a minimum—grant Twitter at least forty days
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`to file its responsive brief.
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`Dated: September 16, 2024
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`Respectfully submitted,
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`5 Worse, VidStream’s proposed schedule runs from the date it filed its motion to
`expedite. This means that even if this Court were to grant VidStream’s motion on
`the same day VidStream’s reply is currently due, Twitter would have just four days
`to draft its merits brief.
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`9
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`Case: 24-2265 Document: 15 Page: 10 Filed: 09/16/2024
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`/s/ Thomas G. Sprankling
`SONAL N. MEHTA
`THOMAS G. SPRANKLING
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, CA 94306
`(650) 858-6000
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`Counsel for Appellee Twitter, Inc.
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`10
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`Case: 24-2265 Document: 15 Page: 11 Filed: 09/16/2024
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`CERTIFICATE OF INTEREST
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`Counsel for Appellee Twitter, Inc. certifies the following:
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`Represented Entities. Fed. Cir. R. 47.4(a)(1). Provide the full names
`1.
`of all entities represented by undersigned counsel in this case.
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`Twitter, Inc.
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`Real Party in Interest. Fed. Cir. R. 47.4(a)(2). Provide the full names
`2.
`of all real parties in interest for the entities. Do not list the real parties if they are the
`same as the entities.
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`X Corp.
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`Parent Corporations and Stockholders. Fed. Cir. R. 47.4(a)(3).
`3.
`Provide the full names of all parent corporations for the entities and all publicly held
`companies that own 10% or more stock in the entities.
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`X Corp. is a privately held corporation. Its parent corporation is X Holdings
`Corp. No publicly traded corporation owns 10% or more of the stock of X
`Corp. or X Holdings Corp.
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`Case: 24-2265 Document: 15 Page: 12 Filed: 09/16/2024
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`
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`Legal Representatives. List all law firms, partners, and associates that
`4.
`(a) appeared for the entities in the originating court or agency or (b) are expected to
`appear in this court for the entities. Do not include those who have already entered
`an appearance in this court. Fed. Cir. R. 47.4(a)(4).
`
`WILMER CUTLER PICKERING HALE AND DORR LLP: Scott W. Bertulli, Rachel S.
`Bier, Sydney E. Donovan, Kim U. Do (former), Reshma C. Gogineni, J. Taylor
`Gooch, Matthew T. Martens, Nora Q.E. Passamaneck
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`HAYNES AND BOONE LLP: Charles M. Jones II, David L. McCombs
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`DURIE TANGRI LLP: Laura E. Miller (former), James Tsuei (former)
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`Related Cases. Other than the originating case(s) for this case, are
`5.
`there related or prior cases that meet the criteria under Fed. Cir. R. 47.5(a)?
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`x Yes (file separate notice; see below)
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` No
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` N/A (amicus/movant)
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`If yes, concurrently file a separate Notice of Related Case Information that complies
`with Fed. Cir. R. 47.5(b). Please do not duplicate information. This separate Notice
`must only be filed with the first Certificate of Interest or, subsequently, if
`information changes during the pendency of the appeal. Fed. Cir. R. 47.5(b).
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`Organizational Victims and Bankruptcy Cases. Provide any
`6.
`information required under Fed. R. App. P. 26.1(b) (organizational victims in
`criminal cases) and 26.1(c) (bankruptcy case debtors and trustees). Fed. Cir. R.
`47.4(a)(6).
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`None.
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`Dated: September 16, 2024
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`
`
`
`
`/s/ Thomas G. Sprankling
`SONAL N. MEHTA
`THOMAS G. SPRANKLING
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, CA 94306
`(650) 858-6000
`
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`Case: 24-2265 Document: 15 Page: 13 Filed: 09/16/2024
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`CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME
`LIMITATIONS
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`The foregoing filing complies with the relevant type-volume limitation of the
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`Federal Rules of Appellate Procedure and Federal Circuit Rules because:
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`1.
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`The filing has been prepared using a proportionally spaced typeface and
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`includes 1,997 words.
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`2.
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`The foregoing has been prepared using Microsoft Word for Office 365
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`in 14-point Times New Roman font. As permitted by Fed. R. App. P. 32(g), the
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`undersigned has relied upon the word count feature of this word processing system
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`in preparing this certificate.
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`/s/ Thomas G. Sprankling
`SONAL N. MEHTA
`THOMAS G. SPRANKLING
`WILMER CUTLER PICKERING
` HALE AND DORR LLP
`2600 El Camino Real, Suite 400
`Palo Alto, CA 94306
`(650) 858-6000
`
`
`September 16, 2024
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