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New Pacer--PATENT LOCAL RULE 4-3 JOINT CLAIM CONSTRUCTION AND PREHEARING STATEMENT
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
ACER, INC., ACER AMERICA CORPORATION and GATEWAY, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPEORTIES LIMITED, PATRIOT SCIENTIFIC CORPORATION, and ALLIACENSE
LIMITED,
Defendants.
HTC CORPORATION, HTC AMERICA, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LIMITED, PATRIOT SCIENTIFIC CORPORATION, and ALLIACENSE LIMITED,
Defendants.
BARCO N.V., a Belgian corporation,
Plaintiff,
v.
TECHNOLOGY PROPERTIES LTD., PATRIOT SCIENTIFIC CORP.,
ALLIACENSE LTD.,
Defendants.
PATENT LOCAL RULE 4-3 JOINT CLAIM CONSTRUCTION AND PREHEARING STATEMENT
To maximize the efficiency to the Court, the parties from all three above-captioned related actions, Plaintiffs Acer Inc., Acer America Corp., and Gateway, Inc. (collectively “Acer”), HTC
Corporation and HTC America Inc. (collectively “HTC”), and Barco, N.V. (“Barco”) and Defendants Technology Properties Limited (“TPL”), Patriot Scientific Corporation, and Alliacense Limited (collectively “Defendants”), hereby submit the following consolidated Joint Claim Construction and Prehearing Statement pursuant to Patent Local Rule 4-3.
I. AGREED CLAIM CONSTRUCTIONS
Exhibit A sets forth a list of claim terms and their respective constructions that have been agreed upon by all the parties in the related actions.
II. DISPUTED CLAIM CONSTRUCTIONS
Exhibit B is a chart that sets forth all the disputed claim terms from U.S. Patent Nos. 5,440,749; 5,530,890; 6,598,148; and 5,809,336 and the respective constructions proposed by each party. All four patents are at issue in the Acer v. TPL and HTC v. TPL actions, while only the ’749, ’890, and ’336 patents are at issue in the Barco v. TPL action. The proposed identification of evidence for each disputed claim term provided by plaintiffs Acer, Barco and HTC is attached as Exhibit C. The proposed identification of evidence for each disputed claim term provided by Defendants is attached as Exhibit D.
III. IDENTIFICATION OF MOST SIGNIFICANT CLAIM TERMS
[APPLICABLE TO BARCO v. TPL ACTION ONLY]
The Acer v. TPL and HTC v. TPL actions were filed in February 2008 and thus operate under the version of the Patent Local Rules published in December 2000. The requirement that the parties to identify most significant terms, therefore, applies only to the Barco action. The parties in Barco v. TPL hereby identify the following claim terms as being most significant to the resolution of the issues in that case:
1. multiple sequential instructions (‘749 Patent)
2. separate direct memory access central processing unit (‘890 Patent)
3. push down stack / stack (‘749 and ‘890 Patents)
4. operates asynchronously to (‘336 Patent)
5. supply the multiple sequential instructions to said central processing unit integrated circuit during a single memory cycle (‘749 Patent)
6. clocking said central processing unit
7. ring oscillator (‘336, ‘890, ‘749 Patents)
8. providing an entire variable speed clock disposed upon said integrated circuit substrate (‘336 Patent) 9. an entire oscillator disposed upon said integrated circuit substrate (‘336 Patent)
10. push down stack connected to said ALU (‘749 Patent)TPL proposes terms 1-4 of this list, which are all potentially claim dispositive. Barco proposes terms 5-10 of this list, which are all potentially claim dispositive.
IV. ANTICIPATED LENGTH OF CLAIM CONSTRUCTION HEARING
The positions of plaintiffs Acer, Barco and HTC and defendants are set forth below. Plaintiff’s Position: Acer, Barco and HTC believe that oral argument on claim construction should take a half-day (approximately four hours) for all disputed terms as to all three related actions. Because the patents-in-suit derive from a common specification, and several terms are shared among more than one patent, many of the individually disputed terms will present questions of claim construction in common with other terms and many terms involve similar conceptual positions by each party. Acer, Barco and HTC further believe that Defendants (below) vastly overestimate the time necessary for oral argument on claim construction and are confident that the parties can properly allocate their time to address all of the relevant issues within a half day. Acer and HTC also disagree that claim construction should be limited to 10 terms decided by parties pursuant to a Local Rule that does not apply to the Acer and HTC actions. There are four patents at issue in the Acer and HTC actions, with 23 claims asserted against Acer and 26 against HTC. The number of disputed terms reflects the unusually large number of asserted claims, as well as the fact that the asserted claims are longer and more complicated than in typical patent cases (many of them independent claims) containing numerous technical terms whose meanings are disputed. Moreover, several of the disputed terms are drafted in means-plusfunction format and thus require construction. Plaintiffs Acer and HTC believe that the number of disputed terms could be substantially reduced if Defendants were limited in the number of claims asserted. A limitation in the asserted claims is particularly appropriate here considering that the USPTO has rejected many of the independent claims in the ongoing reexamination including claims 1 and 9 of the ’749 patent, claims 4 and 7 of the ’148 patent, and claims 1 and 2 of the ’890 patent. Defendants’ Position: Defendants believe that 4 hours time will be sufficient for the Court to hear argument and evidence from all parties related to the most significant terms, as identified by the parties in the Barco v. TPL action above, but that substantial additional time (1 ) full day) may be necessary to argue and present evidence on all of the “disputed” terms identified by the parties in Exhibit B. Defendants disagree with Plaintiffs’ suggestion that Defendants should be limited in asserting infringed claims against Plaintiffs. Defendants also disagree with Plaintiffs’ characterization of the effect of ongoing reexamination proceedings.
V. WITNESSES FOR THE CLAIM CONSTRUCTION HEARING
Defendants do not currently plan to call any fact or expert witness to testify live at the claim construction hearing. Defendants’ expert, Dr. Vojin Oklobdzija, may submit testimony in rebuttal to evidence or argument advanced by Plaintiffs in connection with the claim construction process, including in rebuttal to any expert testimony submitted by Plaintiffs. Plaintiffs Acer and HTC do not plan to call witnesses to testify live at the claim construction hearing, but will have their expert witnesses, Dr. Andrew Wolfe and Dr. David May, respectively, available should the Court believe that such testimony would be useful in resolving the disputed terms between the parties. Acer and HTC may submit declarations from Dr. Wolfe and/or Dr. May in connection with claim construction briefing and will provide a summary of their expert opinions as part of Exhibit C.
VI. PREHEARING CONFERENCE
The positions of plaintiffs Acer, Barco and HTC and defendants are set forth below. Plaintiffs’ Position: Plaintiffs believe a prehearing conference is unnecessary and that the parties can adequately brief and argue the disputed claims so long as the page limits for the briefs are expanded. Should the court wish to have a prehearing conference, Plaintiff Acer would propose November 19, 2010.Defendants’ Position: Because the parties have reached an agreement to enter a stipulation regarding page limitations for briefing, Defendants believe that an early pre-hearing conference is unnecessary. Defendants would request that a pre-hearing conference be set following the conclusion of all briefing (reply briefs are to be filed on February 11) to clarify the amount of time necessary for the hearing and set a date for the claim construction hearing.
Respectfully submitted,
[Dated: Oct. 28, 2010
FARELLA BRAUN + MARTEL LLP
By: /s/ Eugene Y. Mar
John L. Cooper
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
ACER, INC., ACER AMERICA CORPORATION and GATEWAY, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPEORTIES LIMITED, PATRIOT SCIENTIFIC CORPORATION, and ALLIACENSE
LIMITED,
Defendants.
HTC CORPORATION, HTC AMERICA, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LIMITED, PATRIOT SCIENTIFIC CORPORATION, and ALLIACENSE LIMITED,
Defendants.
BARCO N.V., a Belgian corporation,
Plaintiff,
v.
TECHNOLOGY PROPERTIES LTD., PATRIOT SCIENTIFIC CORP.,
ALLIACENSE LTD.,
Defendants.
PATENT LOCAL RULE 4-3 JOINT CLAIM CONSTRUCTION AND PREHEARING STATEMENT
To maximize the efficiency to the Court, the parties from all three above-captioned related actions, Plaintiffs Acer Inc., Acer America Corp., and Gateway, Inc. (collectively “Acer”), HTC
Corporation and HTC America Inc. (collectively “HTC”), and Barco, N.V. (“Barco”) and Defendants Technology Properties Limited (“TPL”), Patriot Scientific Corporation, and Alliacense Limited (collectively “Defendants”), hereby submit the following consolidated Joint Claim Construction and Prehearing Statement pursuant to Patent Local Rule 4-3.
I. AGREED CLAIM CONSTRUCTIONS
Exhibit A sets forth a list of claim terms and their respective constructions that have been agreed upon by all the parties in the related actions.
II. DISPUTED CLAIM CONSTRUCTIONS
Exhibit B is a chart that sets forth all the disputed claim terms from U.S. Patent Nos. 5,440,749; 5,530,890; 6,598,148; and 5,809,336 and the respective constructions proposed by each party. All four patents are at issue in the Acer v. TPL and HTC v. TPL actions, while only the ’749, ’890, and ’336 patents are at issue in the Barco v. TPL action. The proposed identification of evidence for each disputed claim term provided by plaintiffs Acer, Barco and HTC is attached as Exhibit C. The proposed identification of evidence for each disputed claim term provided by Defendants is attached as Exhibit D.
III. IDENTIFICATION OF MOST SIGNIFICANT CLAIM TERMS
[APPLICABLE TO BARCO v. TPL ACTION ONLY]
The Acer v. TPL and HTC v. TPL actions were filed in February 2008 and thus operate under the version of the Patent Local Rules published in December 2000. The requirement that the parties to identify most significant terms, therefore, applies only to the Barco action. The parties in Barco v. TPL hereby identify the following claim terms as being most significant to the resolution of the issues in that case:
1. multiple sequential instructions (‘749 Patent)
2. separate direct memory access central processing unit (‘890 Patent)
3. push down stack / stack (‘749 and ‘890 Patents)
4. operates asynchronously to (‘336 Patent)
5. supply the multiple sequential instructions to said central processing unit integrated circuit during a single memory cycle (‘749 Patent)
6. clocking said central processing unit
7. ring oscillator (‘336, ‘890, ‘749 Patents)
8. providing an entire variable speed clock disposed upon said integrated circuit substrate (‘336 Patent) 9. an entire oscillator disposed upon said integrated circuit substrate (‘336 Patent)
10. push down stack connected to said ALU (‘749 Patent)TPL proposes terms 1-4 of this list, which are all potentially claim dispositive. Barco proposes terms 5-10 of this list, which are all potentially claim dispositive.
IV. ANTICIPATED LENGTH OF CLAIM CONSTRUCTION HEARING
The positions of plaintiffs Acer, Barco and HTC and defendants are set forth below. Plaintiff’s Position: Acer, Barco and HTC believe that oral argument on claim construction should take a half-day (approximately four hours) for all disputed terms as to all three related actions. Because the patents-in-suit derive from a common specification, and several terms are shared among more than one patent, many of the individually disputed terms will present questions of claim construction in common with other terms and many terms involve similar conceptual positions by each party. Acer, Barco and HTC further believe that Defendants (below) vastly overestimate the time necessary for oral argument on claim construction and are confident that the parties can properly allocate their time to address all of the relevant issues within a half day. Acer and HTC also disagree that claim construction should be limited to 10 terms decided by parties pursuant to a Local Rule that does not apply to the Acer and HTC actions. There are four patents at issue in the Acer and HTC actions, with 23 claims asserted against Acer and 26 against HTC. The number of disputed terms reflects the unusually large number of asserted claims, as well as the fact that the asserted claims are longer and more complicated than in typical patent cases (many of them independent claims) containing numerous technical terms whose meanings are disputed. Moreover, several of the disputed terms are drafted in means-plusfunction format and thus require construction. Plaintiffs Acer and HTC believe that the number of disputed terms could be substantially reduced if Defendants were limited in the number of claims asserted. A limitation in the asserted claims is particularly appropriate here considering that the USPTO has rejected many of the independent claims in the ongoing reexamination including claims 1 and 9 of the ’749 patent, claims 4 and 7 of the ’148 patent, and claims 1 and 2 of the ’890 patent. Defendants’ Position: Defendants believe that 4 hours time will be sufficient for the Court to hear argument and evidence from all parties related to the most significant terms, as identified by the parties in the Barco v. TPL action above, but that substantial additional time (1 ) full day) may be necessary to argue and present evidence on all of the “disputed” terms identified by the parties in Exhibit B. Defendants disagree with Plaintiffs’ suggestion that Defendants should be limited in asserting infringed claims against Plaintiffs. Defendants also disagree with Plaintiffs’ characterization of the effect of ongoing reexamination proceedings.
V. WITNESSES FOR THE CLAIM CONSTRUCTION HEARING
Defendants do not currently plan to call any fact or expert witness to testify live at the claim construction hearing. Defendants’ expert, Dr. Vojin Oklobdzija, may submit testimony in rebuttal to evidence or argument advanced by Plaintiffs in connection with the claim construction process, including in rebuttal to any expert testimony submitted by Plaintiffs. Plaintiffs Acer and HTC do not plan to call witnesses to testify live at the claim construction hearing, but will have their expert witnesses, Dr. Andrew Wolfe and Dr. David May, respectively, available should the Court believe that such testimony would be useful in resolving the disputed terms between the parties. Acer and HTC may submit declarations from Dr. Wolfe and/or Dr. May in connection with claim construction briefing and will provide a summary of their expert opinions as part of Exhibit C.
VI. PREHEARING CONFERENCE
The positions of plaintiffs Acer, Barco and HTC and defendants are set forth below. Plaintiffs’ Position: Plaintiffs believe a prehearing conference is unnecessary and that the parties can adequately brief and argue the disputed claims so long as the page limits for the briefs are expanded. Should the court wish to have a prehearing conference, Plaintiff Acer would propose November 19, 2010.Defendants’ Position: Because the parties have reached an agreement to enter a stipulation regarding page limitations for briefing, Defendants believe that an early pre-hearing conference is unnecessary. Defendants would request that a pre-hearing conference be set following the conclusion of all briefing (reply briefs are to be filed on February 11) to clarify the amount of time necessary for the hearing and set a date for the claim construction hearing.
Respectfully submitted,
[Dated: Oct. 28, 2010
FARELLA BRAUN + MARTEL LLP
By: /s/ Eugene Y. Mar
John L. Cooper
