`Case: 24-2265 Document: 18 Page: 1 Filed: 09/18/2024
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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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`Plaintiff-Appellant,
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`v.
`TWITTER, INC.,
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`Defendant-Appellee.
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`On Appeal from the United States District Court for The Northern District of Texas
`Case No. 3:16-cv-00764-N, Judge David C. Godbey
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`APPELLANT VIDSTREAM, LLC’S REPLY TO MOTION TO EXPEDITE
`INTERLOCUTORY APPEAL
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`Austin Curry
` Counsel of Record
`Bradley W. Caldwell
`Jason D. Cassady
`John F. Summers
`Hamad M. Hamad
`CALDWELL CASSADY & CURRY, PC
`2121 N. Pearl Street, Suite 1200
`Dallas, TX 75201
`(214) 888-4848 (telephone)
`(214) 888-4849 (fax)
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`Counsel for VidStream, LLC
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`Case: 24-2265 Document: 18 Page: 2 Filed: 09/18/2024
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` I. ARGUMENT IN REPLY .................................................................................... 1
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`TABLE OF CONTENTS
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`A. Twitter’s Request for Time to Draft “Alternative Arguments” Is
`Complication Only to Create Delay. ......................................................... 2
`B. VidStream Did Not Unreasonably Delay in Seeking Relief. .................... 4
`C. VidStream’s Motion to Expedite Is Not Premature. ................................. 5
`D. Twitter’s Other Arguments Are Wrong. ................................................... 5
`II. CONCLUSION .................................................................................................... 6
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`Case: 24-2265 Document: 18 Page: 3 Filed: 09/18/2024
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`TABLE OF AUTHORITIES
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`Cases
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`Acumed LLC v. Stryker Corp.
` 483 F.3d 800 (Fed. Cir. 2007) ................................................................................ 3
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`Apple, Inc. v. Samsung Electronics, Co., Ltd.
` 678 F.3d 1314 (Fed. Cir. 2012) .............................................................................. 3
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`Duhart v. United States
` 143 F. App’x 355 (Fed. Cir. 2005) ......................................................................... 5
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`Ecolab, Inc. v. FMC Corp.
` 569 F.3d 1335 (Fed. Cir. 2009) .............................................................................. 3
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`Illumina, Inc. v. Qiagen, N.V.
` 207 F. Supp. 3d 1081 (N.D. Cal. 2016) .................................................................. 4
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`Jack Guttman, Inc. v. Kopykake Enters., Inc.
` 302 F.3d 1352 (Fed. Cir. 2002) .............................................................................. 3
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`Joshua v. United States
` 17 F.3d 378 (Fed. Cir. 1994) .................................................................................. 7
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`Novartis Pharms. Corp. v. Accord Healthcare Inc.
` No. CV 18-1043-LPS, 2019 WL 2588450 (D. Del. June 24, 2019) ...................... 5
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`Rules
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`Fed. Cir. R. 31(c) ....................................................................................................... 5
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`ii
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`I.
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`Case: 24-2265 Document: 18 Page: 4 Filed: 09/18/2024
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`ARGUMENT IN REPLY
`Twitter’s opposition to VidStream’s Motion to Expedite serves only to
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`highlight the need for this Court’s intervention to expedite this appeal. This appeal
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`involves the denial of a preliminary injunction, and Twitter has filed a motion for
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`summary affirmance.
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`The Court should not countenance Twitter’s attempts to delay resolution of
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`this appeal with unnecessary process. This is a one-issue appeal of a preliminary
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`injunction request in a case that is already nine years old. In the district court
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`briefing, Twitter was given seven weeks to respond to VidStream’s motion for
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`preliminary injunction—a lengthy extension that VidStream did not oppose. D. Ct.
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`Dkts. 262, 270, and 275. At this point, Twitter has had over nine months to
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`evaluate its position. Certainly, Twitter can present whatever arguments it wants
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`in its response brief. But if its position were truly so well-founded that summary
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`affirmance were appropriate, then Twitter could simply present its same argument
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`on an expedited basis. Twitter’s purported need for more time to present its
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`alternative arguments suggests that Twitter lacks confidence in the argument it
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`presented in its motion for summary affirmance.
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`Moreover, Twitter’s “alternative grounds for affirmance” are almost
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`certainly irrelevant. The district court did not make findings about delay, the
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`likelihood of success on the merits, hardship, public interest, or any other ground
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`1
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`Case: 24-2265 Document: 18 Page: 5 Filed: 09/18/2024
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`that might justify withholding equitable relief. The district court did not even
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`disagree that, under the traditional principles of equity as reflected by Chancery
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`practice, ongoing infringement, when the plaintiff established it, was recognized as
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`irreparable injury. The district court denied VidStream’s motion because this
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`Court has not previously applied these traditional principles of equity. VidStream
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`is asking for the district court to be appropriately instructed on this narrow issue.
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`On remand, the district court might still decline to enjoin Twitter for delay, the
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`likelihood of success on the merits, etc. But, as this Court has repeatedly
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`recognized, it is the district court who should be the first to make findings of fact
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`on any and all of Twitter’s alternative arguments.
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`For these reasons and those described in more detail below, the Court should
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`grant expedited consideration.
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`A. Twitter’s Request for Time to Draft “Alternative Arguments” Is
`Complication Only to Create Delay.
`To avoid expedited consideration, Twitter first points out that “this Court
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`may affirm below on any ground apparent in the record,” and contends that
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`“considering other possible grounds for denial . . . would be most efficient”—
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`threatening to present a morass of alternative arguments for the Court to “wad[e]
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`through.” Opp. at 6-7. But there is no need for Twitter to brief these “many
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`alternative arguments,” Dkt. 5 at 2 n.2, as the Court is nearly certain not to
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`entertain them. This Court has repeatedly and routinely refused to act as a “first-
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`2
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`Case: 24-2265 Document: 18 Page: 6 Filed: 09/18/2024
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`line court of equity,” a role that belongs “exclusively to the district court.”
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`Acumed LLC v. Stryker Corp., 483 F.3d 800, 811 (Fed. Cir. 2007). See also Apple,
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`Inc. v. Samsung Electronics, Co., Ltd., 678 F.3d 1314, 1332-33 (Fed. Cir. 2012)
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`(remanding to the district court for consideration of remaining factors because “[i]t
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`is normally not appropriate for this court to make such highly factual inquiries for
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`the first time on appeal.”); Jack Guttman, Inc. v. Kopykake Enters., Inc., 302 F.3d
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`1352, 1362-63 (Fed. Cir. 2002) (holding that “the appropriate remedy is not to
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`reverse with instructions to enter the injunction . . . but rather to vacate the trial
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`court’s previous order and remand for furthering proceedings”). Twitter’s
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`opposition demanding time to brief these arguments fails to cite a single instance in
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`which this Court has decided substantive issues related to injunctive relief in the
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`first instance, nor does Twitter explain how this Court could even do so when the
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`Court’s review of injunction issues is abuse of discretion. See Ecolab, Inc. v. FMC
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`Corp., 569 F.3d 1335, 1352 (Fed. Cir. 2009) (“[W]e decline to analyze the eBay
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`factors in the first instance.”).
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`While VidStream cannot stop Twitter from wasting its own resources in
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`briefing irrelevant alternative issues, Twitter’s apparent intention to do so is no
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`legitimate basis to avoid expedited consideration of this one-issue appeal.
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`3
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`Case: 24-2265 Document: 18 Page: 7 Filed: 09/18/2024
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`B. VidStream Did Not Unreasonably Delay in Seeking Relief.
`Twitter next opposes expedited briefing by implying that VidStream’s
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`alleged delay in filing its preliminary injunction motion is grounds to deny
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`expedited consideration as well. Twitter argues that VidStream was somehow
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`responsible for this case’s lengthy pendency. Opp. at 3, 8 n.4. But while the
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`Court’s stay was required by the bankruptcy, the delay in the case (and a
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`contributing factor for the bankruptcy, itself) was due to the pending IPR
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`proceedings. It was only after Twitter had lost its IPR petitions, conducted oral
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`argument on its appeal, and heard from VidStream that VidStream would seek to
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`lift the district court’s stay that Twitter made any argument at the district court that
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`VidStream had unreasonably delayed anything. See D. Ct. Dkt. 167 at 7-9.
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`Contrary to its current arguments, Twitter previously recognized that “[t]he parties
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`had good reason not to litigate the Asserted Patents until [May 2022]” because the
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`case was mired in procedure. See D. Ct. Dkt. 217 at 6 n.2.
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`VidStream also filed its motion for preliminary injunction only three weeks
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`after Twitter’s invalidity arguments based on indefiniteness were rejected. District
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`courts have recognized that patent owners are permitted to wait until validity issues
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`are resolved without prejudicing requests for injunctive relief. See Illumina, Inc. v.
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`Qiagen, N.V., 207 F. Supp. 3d 1081, 1093 (N.D. Cal. 2016) (finding patent
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`owner’s alleged delay justified where “the validity [of the asserted patent] hung in
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`4
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`Case: 24-2265 Document: 18 Page: 8 Filed: 09/18/2024
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`limbo until the Federal Circuit upheld the PTAB’s decision [finding the patent not
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`invalid in IPR].”); Novartis Pharms. Corp. v. Accord Healthcare Inc., No. CV 18-
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`1043-LPS, 2019 WL 2588450, at *5 (D. Del. June 24, 2019) (finding irreparable
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`harm despite accusation that patentee unduly delayed in awaiting results of IPR
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`petitions).
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`C. VidStream’s Motion to Expedite Is Not Premature.
`Twitter also contends that VidStream’s request to expedite proceedings is
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`“premature” because it has filed a motion that would “terminate [the] appeal” and
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`thus under Federal Circuit Rule 31(c) “there is no briefing schedule to expedite.”
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`Opp. at 5. Twitter is wrong. This Court may always alter the briefing schedule,
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`and “Fed. Cir. R. 31(c) does not excuse the failure to comply with a court order.”
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`Duhart v. United States, 143 F. App’x 355 (Fed. Cir. 2005) (nonprecedential).
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`D. Twitter’s Other Arguments Are Wrong.
`Twitter makes two additional arguments against expedited consideration.
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`First, Twitter contends that VidStream’s Motion to Expedite improperly seeks a
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`ruling on its appeal on the irreparable harm issue subject to VidStream’s merits
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`appeal. Opp. at 5-6. Not so. While the harm that VidStream continues to suffer
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`from Twitter’s ongoing infringement is a basis to expedite (in addition to the
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`single-legal-issue nature of the appeal), this Court can certainly expedite briefing
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`without a showing of irreparable injury. It was Twitter, not VidStream, that
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`5
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`Case: 24-2265 Document: 18 Page: 9 Filed: 09/18/2024
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`suggested conflating the issues by assuming that irreparable harm is required to
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`expedite briefing. See Add008-009. The Court can expedite briefing for any
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`reason, including the harm caused by Twitter’s ongoing infringement, the single-
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`issue nature of the appeal, the fact the appeal involves a preliminary injunction, or
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`the upcoming April 2025 trial date.
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` Finally, Twitter opposes VidStream’s Motion to Expedite because
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`VidStream “does not even try to show that Twitter has infringed the ’304 patent.”
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`Opp. at 7. This is a straw-man argument. The district court made no finding about
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`VidStream’s likelihood of success, and VidStream’s is not asking this Court to
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`enjoin Twitter at this time. Again, the district court denied VidStream’s motion on
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`a very narrow issue: that this Court has not yet applied the traditional principles of
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`equity post-eBay. VidStream is asking this Court to remedy that and instruct the
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`district court about how those principles worked. From there, on remand, the
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`district court can evaluate infringement and the other issues that courts should
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`evaluate when deciding whether to withhold equitable relief.
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`II. CONCLUSION
`Boiled down, Twitter opposes an accelerated resolution of this appeal
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`because it intends to present “many alternative arguments,” Dkt. 5 at 2 n.3, that
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`this Court will likely refuse to consider in the first instance. Twitter’s reluctance to
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`focus on its primary argument demonstrates that it is not “so clearly correct as a
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`6
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`Case: 24-2265 Document: 18 Page: 10 Filed: 09/18/2024
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`matter of law that no substantial question regarding the outcome of the appeal
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`exists.” Dkt. 5 at 2 (quoting Joshua v. United States, 17 F.3d 378, 380 (Fed. Cir.
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`1994)). In any event, Twitter’s alternative arguments are no reason for further
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`delay. This is an exceedingly old case, and far too much of the patent’s limited
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`term has been destroyed by Twitter’s infringement. For the reasons described
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`above and in VidStream’s Motion, VidStream respectfully requests the Court to
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`grant VidStream’s request for expedited consideration and to enter VidStream’s
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`proposed briefing schedule.
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`Case: 24-2265 Document: 18 Page: 11 Filed: 09/18/2024
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`September 18, 2024
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`Respectfully submitted,
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`/s/ Austin Curry
`Austin Curry
`Bradley W. Caldwell
`Jason C. Cassady
`John F. Summers
`Hamad M. Hamad
`CALDWELL CASSADY & CURRY, PC
`2121 N. Pearl Street, Suite 1200
`Dallas, TX 75201
`(214) 888-4848 (telephone)
`(214) 888-4849 (fax)
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`Counsel for VidStream, LLC
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`Case: 24-2265 Document: 18 Page: 12 Filed: 09/18/2024
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`CERTIFICATE OF COMPLIANCE
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`This brief complies with the Federal Rules of Appellate Procedure and Federal
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`Circuit Rules because:
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`1. The filing has been prepared using a proportionally spaced typeface and
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`includes 1,482 words.
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`2. The foregoing has been prepared using Microsoft Word for Office 365 in
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`14-Point Times New Roman font.
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`September 18, 2024
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`/s/ Austin Curry
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