UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION

Transcription

1 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 1 of 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION WI-LAN, INC., Plaintiff, Case No. 2:07-CV-474 v. Hon. T. John Ward WESTELL TECHNOLOGIES, INC., NETGEAR, INC., 2WIRE, INC., D-LINK JURY TRIAL SYSTEMS, INC., D-LINK CORPORATION, BELKIN INTERNATIONAL INC., BUFFALO TECHNOLOGY (USA), INC., MELCO HOLDINGS INC., BROADCOM CORPORATION, ATHEROS COMMUNICATIONS, INC., MARVELL SEMICONDUCTOR, INC., TEXAS INSTRUMENTS, INCORPORATED, INFINEON TECHNOLOGIES NORTH AMERICA CORPORATION, INFINEON TECHNOLOGIES AG, INTEL CORPORATION, BEST BUY CO., INC., and CIRCUIT CITY STORES, INC., Defendants. PLAINTIFF S RESPONSE TO DEFENDANTS MOTION FOR CONSOLIDATION OF CO-PENDING RELATED CASES AND ENTRY OF DOCKET CONTROL ORDER Plaintiff Wi-LAN, Inc. ( Wi-LAN ) files this Response to Defendants Motion for Consolidation of Co-Pending Related Cases and Entry of Docket Control Order. I. Summary of Response. The Defendants move to consolidate the 473 case and the 474 case for discovery and trial. They further request that the Court order a Markman hearing and trial of Wi-LAN s patent infringement claims against the Defendants in both cases who are integrated circuit and circuit

2 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 2 of 16 board suppliers (the Chip Defendants ) 1 before proceeding with the Markman hearing and trial of the claims against the parties that Defendants allege are the Customers of the Chip Defendants, the Laptop Computer Defendants 2 and the Wireless Router Defendants. 3 Under the Defendants proposal, all Defendants will participate in discovery, but only the Chip Defendants will participate in the initial Markman process and proceed to trial. (Mot. at 7-8.) Acknowledging that the fourteen laptop computer and wireless router manufacturers are accused of infringement in the two cases, the Defendants nevertheless express the unsubstantiated opinion that only the six Chip Defendants should be the focus of this matter with respect to liability and damages. (Mot. at 10.) The Defendants proposal that the Court order Wi-LAN s claims to be tried first against the Chip Defendants is, in effect, nothing more than a motion for a stay, under the doctrine known as the customer suit exception, of Wi-LAN s claims against the Laptop Computer Defendants and the Wireless Router Defendants. The customer suit exception, however, is not applicable here, including because the parties and issues to be decided are all before the same Court, not different courts. In addition, the Laptop Computer Defendants and the Wireless Router Defendants are not mere customers who resell chips and circuit boards. They manufacture laptop computer and wireless router products alleged to be infringing, and the Chip 1 The Chip Defendants are Atheros, Broadcom, Intel, Marvell, Infineon and Texas Instruments. 2 The Laptop Computer Defendants, Acer, Apple, Dell, Gateway, HP, Lenovo, Sony, Toshiba, Best Buy and Circuit City, are alleged to infringe by making, using, offering for sale, importing, and/or selling personal computers and/or other company-branded products with wireless capability in Civil Action No. 2:07-CV The Wireless Router Defendants, 2Wire, Belkin, Buffalo, D-Link, Netgear, Westell, Best Buy and Circuit City, are alleged to infringe by making, using, offering for sale, importing, and/or selling wireless access points or wireless routers within the scope of one or more claims of the patents-in-suit in Civil Action No. 2:07-CV

3 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 3 of 16 Defendants integrated circuits are but one part or component of the infringing products. A judgment against the Chip Defendants is thus not likely to resolve all allegations of direct and indirect infringement of the apparatus and method claims asserted against the Laptop Computer Defendants and the Wireless Router Defendants. Indeed, the policies of efficiency and judicial economy underlying the customer suit exception would be thwarted if a stay (or delay) of Wi- LAN s claims against the alleged Customer Defendants were granted in these cases. Such requests have repeatedly been rejected in similar cases, and Defendants proposal to stay the Markman ruling and trial of the claims against the Laptop Computer Defendants and the Wireless Router Defendants until after trial of the Chip Defendants should be similarly denied. Wi-LAN further opposes the Defendants Motion because, at this early stage of the proceedings, it is premature. Before any disclosures have been made or discovery has commenced, it is impossible to determine whether a Markman proceeding and trial against only the Chip Defendants will, as Defendants assert, likely resolve all liability and damages issues. (Mot. at 2.) Since the patents-in-suit contain both apparatus and method claims and Wi-LAN alleges both direct and indirect infringement claims against the Laptop Computer Defendants and the Wireless Router Defendants, it is impossible to know now and also highly unlikely that they will have limited relevance to the issues in the case, as Defendants conclusorily represent. (Mot. at 11.) For instance, Wi-LAN expects that discovery will produce substantial evidence that the Laptop Computer Defendants and Wireless Router Defendants intentionally encourage the practice of an infringing method by the millions of end users who buy and utilize their products. A trial against the Chip Defendants would not necessarily resolve such inducement claims against the Laptop Computer Defendants and Wireless Router Defendants. Nor would such a trial likely resolve Wi-LAN s claims against the Chip Defendants because it is highly 3

4 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 4 of 16 likely such claims will depend on a finding of direct infringement by the Laptop Computer Defendants and the Wireless Router Defendants, leaving the chip and product defendants inextricably intertwined (i.e., one group of defendants cannot efficiently be tried without the other). The Defendants motion is, at best, premature and should be denied without prejudice to its refiling after the parties have made their disclosures and conducted discovery and the Court s Markman order has been issued construing all of the asserted claims of the patents-in-suit. 4 II. Wi-LAN Does Not Oppose Consolidation or Coordination for Discovery and Markman Purposes Under Defendants Proposed Scheduling Deadlines. As counsel for Wi-LAN informed counsel for Defendants before their motion was filed, Wi-LAN does not oppose consolidation or coordination of the 473 case and the 474 case for discovery and Markman purposes. 5 Counsel for Wi-LAN does not oppose entry of a Docket Control Order with the deadlines in the schedule proposed by Defendants, except that Wi-LAN proposes that, in the interest of efficiency, the Defendants proposed deadlines should apply to all parties, not just to the Chip Defendants; that all parties should participate in the Markman process; and that the Court should determine the appropriate grouping for trial, if necessary, after discovery when all the facts are known and after a Markman ruling when the scope of the patent claims has been determined. The alleged benefit of a separate Markman hearing and first trial 4 Since Defendants repeatedly state that the Defendants proposal requires all Defendants to participate in discovery (and comply with Patent Rules 3-1, 3-2, 3-3, and 3-4), the Defendants would not be inconvenienced or unduly burdened if the Court delays its consideration of the most efficient means to try the claims at issue until after discovery closes and the Markman order issues, when all substantive aspects of the asserted patent claims and infringement and invalidity theories will be well known to the parties and the Court. (Mot. at 2, 8, 10 and Exhibit A.) 5 At this point in the litigation, formal consolidation seems unnecessary to achieve the benefits of a coordinated discovery and Markman process under the Court s Local Patent Rules. Given that Defendants counsel have cooperated in filing the Motions to Consolidate, duplicative discovery can be avoided by Defendants counsel s agreeing with Plaintiff s counsel to apply any potentially overlapping discovery to both cases. 4

5 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 5 of 16 against the Chip Defendants is entirely speculative at this point. Therefore, during the parties conference on this Motion, Wi-LAN explained that it could not agree to the Defendants proposed schedule permitting the claims against the Chip Defendants to be litigated first, although Wi-LAN agrees that consolidated or coordinated discovery and Markman proceedings are desirable. (Mot. at 12.) III. Defendants Motion For a First Trial Against the Chip Defendants Is Unwarranted and, At Best, Premature. Wi-LAN vehemently opposes Defendants proposal that the Court decide now, before any patent rule disclosure or discovery has taken place, that Wi-LAN s infringement claims against the Chip Defendants should be set for Markman hearing and trial first, before the Markman hearing and trial of the related claims against the Laptop Computer Defendants and the Wireless Router Defendants. A decision to apply the Defendants proposed bifurcated Markman and trial procedure is inappropriate for numerous reasons, discussed below. A. Defendants Proposal Would Impede Efficiency and Thwart Judicial Economy. 1. The Laptop Computer Defendants and Wireless Router Defendants Are Not Mere Customer Defendants, As Defendants Assert. Defendants represent that all liability and damages issues regarding the Customer Defendants will likely be resolved if the Court allows the Chip Defendants to litigate first. (Mot. at 2.) Under the policies of the customer suit exception, which Defendants Motion invokes sub silentio, an action against an allegedly infringing supplier may be given priority over an action against a mere customer of the supplier if the action against the supplier will resolve all issues against the customer. See Codex Corp. v. Milgo Elec. Corp., 553 F.2d 735, 737 (1st Cir. 1977); Kahn v. Gen. Motors Corp., 889 F.2d 1078, (Fed. Cir. 1989). What the Defendants are proposing in the guise of a motion for a Docket Control Order establishing a 5

6 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 6 of 16 bifurcated Markman and trial schedule is, in effect, the application of the customer suit exception to stay Wi-LAN s claims against the Laptop Computer Defendants and the Wireless Router Defendants until after the Markman and trial of Wi-LAN s claims against the Chip Defendants. The principles guiding consideration of a stay of the claims against an alleged customer are efficiency and judicial economy. Tegic Communs. Corp. v. Board of Regents, 458 F.3d 1335, 1343 (Fed. Cir. 2006). Numerous district courts have rejected requests for such stays under circumstances similar to those here. Defendants representation to the Court that six defendants supply the integrated circuit products and that the remaining defendants (called Customer Defendants by Defendants) merely purchase and resell the Supplier Defendants products is inaccurate. 6 (Mot. at 1.) The Chip Defendants supply only one part of the accused products that the other defendants sell, which are laptop computers and wireless routers. The Laptop Computer Defendants and the Wireless Router Defendants are not the type of customers that are covered by the policies of the customer suit exception. A stay of the claims against them will not foster efficiency and judicial economy, as Defendants represent. The so-called Customer Defendants here are not mere resellers of the Chip Defendants circuits and circuit board products to which the customer suit stay is applicable. As Defendants acknowledge, the Laptop Computer Defendants and the Wireless Router Defendants are original equipment manufacturers themselves. 7 (Mot. at 3.) In the cases staying claims 6 A wireless router (or wireless access point, as Defendants describe the product) is a device that allows multiple computers to connect to a wireless network. For instance, wireless routers are used in home networks to allow multiple computers to connect to a single internet connection such as cable or a DSL modem. 7 Wi-LAN acknowledges that Defendants Best Buy Co., Inc. and Circuit City Stores, Inc. are not manufacturers and are mere retailers of products, but the products they sell are manufactured or 6

7 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 7 of 16 against customers of a supplier, the customers generally have no part in the manufacture of an accused infringing product. See Kahn v. General Motors Corp., 889 F.2d 1078, 1082 (Fed. Cir. 1989). In Rhode Gear U.S.A. v. Frank s Spoke N. Wheel, Inc., for instance, the court stayed suit against a bicycle shop that was the mere retailer of the accused infringing bicycle part. 225 U.S.P.Q. (BNA) 1256, 1258 (D.C. Mass. 1985). None of the Laptop Computer Defendants and Wireless Router Defendants merely resell circuits and circuit boards; fifteen of them manufacture products, sell them to the public through stores like Best Buy and Circuit City, and are themselves accused of direct and indirect infringement. Under such circumstances, as Judge Davis noted in Microsoft Corp., et al. v. Commonwealth Scientific & Indus. Research Organization, et al., No. 6:06-CV-549, 2007 U.S. Dist. LEXIS 91550, at *8-10 (E.D. Tex. Dec. 13, 2007) (a case in which many of the same chip suppliers, laptop defendants, and wireless router defendants are parties), the typical customer suit exception, where a patent holder is suing a mere reseller of a manufactured good, does not apply to require a stay of the suit against the alleged customers of the chip manufacturer. Instead, as Judge Davis noted, to resolve all issues, the fact finder may need to find that the Customer Defendants directly infringe before finding that the Chip Defendants indirectly infringe through their sales of circuits or circuit boards to the Customer Defendants. See id. Other courts have reached the same conclusion. Kahn v. Gen. Motors Corp., 889 F.2d at 1081 (finding that suit alleging infringement by General Motors AM stereo receivers that incorporated Motorola chips should not be stayed in deference to a suit that would determine infringement of Motorola s chips because, inter alia, the suit would not resolve all issues); Air Prods. & Chems., Inc. v. MG Nitrogen Servs., Inc., 133 F. Supp. 2d 354, 357 (D. Del. 2001) (refusing to stay case sold by the Laptop Computer Defendants and the Wireless Router Defendants, not the Chip Defendants. 7

8 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 8 of 16 against the customer of Air Products because the equipment Air Products sold was only part of customer s allegedly infringing device and the customer was not a mere reseller). As indicated in Microsoft, it makes no logical sense to delay the trial of infringement claims against customer defendants when it is likely the customer s infringement must be proved as part of any indirect infringement claims against the chip suppliers. See Microsoft, 2007 U.S. Dist. LEXIS 91550, at * When Both the Suppliers and Customers Are Parties to the Same Suit, Efficiency and Judicial Economy Are Best Served By Simultaneous Proceedings. Numerous courts have rejected requests for stays of claims against customers when both the suppliers and customers are parties to the same suit, as here. Wi-LAN grouped its claims by the product sold to the end user because Wi-LAN believes that those products will likely be the focus of the case, not necessarily the integrated circuits and circuit boards. Wi-LAN joined both the manufacturers of laptop computers and certain of their suppliers of integrated circuits and circuit boards in one suit, and grouped both the manufacturers of wireless routers and a number of their suppliers in the other suit. Wi-LAN filed separate cases covering laptop computers and wireless routers to eliminate confusion as to the differing infringement claims between the products and to promote administrative ease and efficiency in disclosures, discovery and trial. The laptop computer manufacturers and related chip suppliers were sued in one action and the wireless router manufacturers and related chip suppliers were sued in another action so that all of the allegations of direct and indirect infringement of apparatus and method claims against the different products that will likely be the focus of the respective litigations could be decided in one suit. Courts have recognized that the granting of stays of claims against customers in this situation is not necessary to implement the policies of efficiency and economy when all the claims can be resolved in one suit. 8

9 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 9 of 16 Lifelink Pharmaceuticals, Inc. v. NDA Consulting, Inc., C.A. No. 5:07-CV-785, 2007 U.S. Dist. LEXIS 62674, *4-5 (N.D. Ohio Aug. 24, 2007), is a recent case that rejects the type of proposal that Defendants submit in their motion. The plaintiff sued both the suppliers of a product and the distributors of the product for patent infringement. The distributors argued that the claims against them should be stayed until the claims against the suppliers were tried. Id. The distributors alleged, as the Defendants do here, that the real party in interest for liability and damages purposes was the supplier from whom the plaintiff could collect its judgment. Id. at *7. The Lifelink court found that, when a patent holder names as defendants both the purported customers and the product s source in one suit, there is no need to grant a stay to foster judicial economy or to protect the ability of the supplier to effectively litigate the issue of patent infringement. Id. at * Other courts have reached the same conclusion. 8 See Alloc, Inc. v. Unilin Decor N.V., C.A. No. 02-C-1266, 2005 U.S. Dist. LEXIS at *10-11 (E.D. Wis. Dec. 15, 2005) (finding that the rationales underlying the customer suit exception do not apply when the allegedly infringing manufacturer and the allegedly infringing customer are sued in the same suit in the same jurisdiction); Privasys, Inc. v. Visa Int l, No. C SI, 2007 U.S. Dist. LEXIS 86838, at *10-12 (N.D. Cal. Nov. 14, 2007) (same) (citing cases). 8 In one case in which both manufacturers and customers were joined as defendants, Refac Int l, Ltd. v. IBM, 790 F.2d 79, 81 (Fed. Cir. 1986), the district court stayed proceedings against thirtyone customer defendants pending suit against six manufacturer defendants because the district court appears to have found that the number of defendants posed management issues. This Court has managed and coordinated proceedings in cases with large numbers of defendants without difficulty. See Parental Guide of TX v. Funai Corp. Inc., et al., Civil Action No. 2:00-CV-262- TJW (E.D. Tex.); American Video Graphics, L.P. v. Hewlett-Packard Co. et al., Civil Action No. 6:04-CV 397 (E.D. Tex.) and American Video Graphics, L.P. v. Electronic Arts, Inc., et al., Civil Action No. 6:04-CV-398-LED (E.D. Tex.). In the American Video Graphics cases, in which a number of the Defendants here were parties, the Court held consolidated case management conferences and status conferences to coordinate the proceedings. The Court s application of the Local Patent Rules for the Eastern District of Texas eliminates many of the issues that might otherwise complicate large multi-party patent cases. 9

10 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 10 of The Laptop Computer Defendants and Wireless Router Defendants Agreement to Be Bound In Accordance With Collateral Estoppel Principles Will Not Eliminate a Second Trial. The Laptop Computer Defendants and the Wireless Router Defendants vaguely purport to agree to be bound by any judgment in accordance with collateral estoppel principles. Collateral estoppel is appropriate when: (1) the identical issue was previously adjudicated; (2) the issue was actually litigated; and (3) the previous determination was necessary to the decision. Pace v. Bogalusa City School Board, 403 F.3d 272, 290 (5th Cir. 2005). The agreement to be bound by collateral estoppel principles will not eliminate the need for a second trial, as Defendants represent. 9 First of all, as parties to the actions, the Laptop Computer Defendants and Wireless Router Defendants are likely bound by collateral estoppel principles to any decisions on issues litigated in the cases whether they agree to be bound or not. Moreover, in footnote 3 of the Motion, the Laptop Computer Defendants and Wireless Router Defendants eviscerated any benefit to their agreement to be bound by collateral estoppel principles by expressly reserving the right to litigate any issues not litigated in the proceedings involving the Chip Defendants. 10 Since the patents-in-suit contain both method and apparatus claims and the Defendants proposal 9 Defendants assert that their proposal eliminates the need for two trials on the same patents and the risk of inconsistent verdicts. (Mot. at 2, 11.) If, after discovery and the Markman hearing, the Court perceives that two trials on the same patents pose a problem, the Court can, at that time, consolidate the cases for the trial of all issues against all Defendants or otherwise group the parties and issues for trial. 10 Defendants footnote 3 states: Defendants believe that all claims and defenses can be resolved in a single Supplier Defendant-only trial, including any non-infringement defenses that relate to the Customer Defendants. However, to the extent any issues are not litigated in Supplier Defendant proceedings, the Customer Defendants reserve all rights to litigate them in subsequent proceedings. (Mot. at 2 (emphasis added)). 10

11 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 11 of 16 does not contemplate that the Laptop Computer Defendants and Wireless Router Defendants will even participate in the first Markman proceeding, there are lots of issues that will likely remain for Wi-LAN and the Laptop Computer Defendants and Wireless Router Defendants to litigate. For instance, if Wi-LAN s patents are found valid and infringed by the Chip Defendants in a first trial, the Laptop Computer Defendants and Wireless Router Defendants could still raise defenses not litigated by the Chip Defendants under their reservation of unlitigated issues in footnote Collateral estoppel principles do not bar the litigation of issues that could have been raised but were not litigated. Donaldson v. Acosta, 163 Fed. Appx. 261, (5th Cir. Jan. 5, 2006) (finding that while res judicata or claim preclusion bars the litigation of claims that either have been litigated of should have been raised, collateral estoppel precludes a party from litigating an issue only if the issue was actually litigated ) (quoting Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, (5th Cir. 2005)). Moreover, discovery may reveal, and indeed is likely to reveal, that one or more of the Laptop Computer Defendants and Wireless Router Defendants have utilized integrated circuits or circuit boards in their products that were supplied by a third party, not one of the Chip Defendants. The determination of the Chip Defendants liability could not, therefore, entirely determine the liability of the Laptop Computer Defendants and Wireless Router Defendants. See Cherdak v. Stride Rite Corp., 396 F. Supp. 2d 602 (D. Md. 2005) (finding that a stay was inappropriate because the customer did not purchase all accused products from the supplier). Collateral estoppel principles would certainly not eliminate a trial on those claims. The Laptop Computer Defendants and Wireless Router Defendants would not be deterred from selling their 11 Defendants have raised numerous counterclaims such as fraud, negligent misrepresentation, and promissory estoppel that require evidence of reliance on the part of the Defendants. These counterclaims, which are personal to each Laptop Computer Defendant and Wireless Router Defendant, could not be resolved in the Chip Defendants trial. 11

12 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 12 of 16 products by a judgment against the Chip Defendants because they could purchase integrated circuits and circuit boards elsewhere. See A.P.T., Inc. v. Quad Environmental Tech. Corp., 698 F. Supp. 718, 721 (N.D. Ill. 1988) (noting that a stay is inappropriate when a patentee has a separate interest in litigating against a customer because the customer would not be deterred from selling infringing devices by a judgment against the supplier) (citing Emerson Elec. Co. v. Black & Decker Mfg., 606 F.2d 234 (8th Cir. 1979)). Additionally, the potential claims of indirect infringement that would be tried against the Chip Defendants contain elements of intent and knowledge that are not part of a direct infringement case. Inducement of infringement, unlike direct infringement, requires evidence of intentional, knowing conduct directed to encouraging another s direct infringement. See DSU Med. Corp. v. JMS Co., 471 F.3d 1293, 1306 (Fed. Cir. 2006). Contributory infringement requires knowing conduct and a finding that the Chip Defendants accused products have no substantial, non-infringing uses. Id. at A jury could reject an indirect infringement claim against the Chip Defendants because the jury finds there is insufficient evidence of intent or knowledge without ever having to decide if there is sufficient evidence of direct infringement. Consequently, if a Chip Defendant prevails at trial on Wi-LAN s claims of inducement and/or contributory infringement as to a claim of the patents-in-suit, any claims of direct infringement against the Laptop Computer Defendants and Wireless Router Defendants would still have to be tried under collateral estoppel principles because a finding of no direct infringement is not necessarily established by a judgment of no indirect infringement. See Pace, 403 F.3d at 290 (for collateral estoppel to apply the previously determined issue must be necessary to the decision). 12

13 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 13 of 16 Because the patent rule disclosures and discovery will likely reveal facts that undermine any alleged advantages of efficiency and judicial economy that might result from a bifurcated trial against the Chip Defendants, the Court should deny the Defendants motion for a case phasing plan that would require the claims against the Chip Defendants to proceed to Markman hearing and trial first, before Markman hearing and the trial of the claims against the Laptop Computer Defendants and the Wireless Router Defendants. B. The Defendants Motion Is Premature. For all the reasons stated above, Wi-LAN contends that it is impossible to determine now whether the Defendants proposal will accomplish the benefits that Defendants allege. The parties have not exchanged infringement and invalidity contentions or disclosures. The Court has not held a scheduling conference. No discovery has been taken. There is no Markman ruling. At this time, it is impossible to know whether a trial against the Chip Defendants would resolve all the claims in the case, as Defendants claim. The public policy favoring expeditious resolution of disputes is of particular weight when dealing with wasting assets such as patents. Katz v. Lear Siegler, 909 F.2d 1459, (Fed. Cir. 1990). There is no good reason to unduly delay the resolution of major issues unless it can be determined without doubt at this time that all issues will be resolved in the first trial that Defendants propose. See id. (finding abuse of discretion in district court s staying action). The Defendants have not met their burden to demonstrate that their proposal will resolve all issues in the first trial against the Chip Defendants or that it achieves the alleged efficiency or judicial economy that would justify the requested bifurcation and delay of the Markman and trial of Wi- LAN s claims against the Laptop Computer Defendants and Wireless Router Defendants. 13

14 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 14 of 16 IV. Conclusion. Because all the facts are not presented or even known that are necessary to assess the purported merit of Defendants Motion, Wi-LAN respectfully requests that the Defendants Motion be denied, or denied without prejudice to its reurging after the Court s Markman ruling has issued and discovery has closed. Since all of the Defendants have agreed to fully participate in discovery and disclosures under Patent Rules 3-1, 3-2, 3-3, and 3-4, there can be little or no prejudice to any of the Defendants, including the Laptop Computer Defendants and Wireless Router Defendants, if the Court waits to determine how best to try the claims at issue until after the full scope of the claims and defenses are known to both the parties and the Court and trial is imminent. 14

15 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 15 of 16 Dated: June 18, Respectfully submitted, /s/sam Baxter Sam F. Baxter TX State Bar No MCKOOL SMITH, P.C. 104 East Houston Street, Suite 300 Marshall, TX Telephone: (903) Facsimile: (903) ATTORNEYS FOR PLAINTIFF WI-LAN, INC. 15

16 Case 2:07-cv TJW Document 146 Filed 06/18/2008 Page 16 of 16 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel via ECF electronic service. Local Rule CV-5(a)(3)(A) on this the 18th day of June, /s/sam Baxter Sam Baxter 16