One dispute remains with the schedule. The defendants wish to introduce a motion in August for summary judgment on the grounds of indefiniteness with respect to most of the claims of the '652 and '314 patents (two of the four asserted patents). The defendants would like this motion to be heard and ruled on before claim construction briefs are due. It is the defendants' contention that this will make the claims construction process more efficient. The language which the defendants contend is indefinite is:

... displaing images "in an unobtrusive manner" and in a way that "does not distract a user."

For its part Interval contends the defendants: (1) are merely trying to increase their page limit for their claim construction brief; (2) never requested this early deadline for the motion before; and (3) previously said the issue of indefiniteness goes hand-in-hand with claims construction. Interval suggests that, if the defendants really want an early hearing, the Court should simply have all claim construction briefs due at the earlier date (requested by defendants for the motion for summary judgment).

Best guess is that Interval will likely prevail on this issue and the issue of indefiniteness will be taken up as a part of claims construction.

**************

Docket

07/10/2012 - 270 - JOINT STATUS REPORT signed by all parties Filed by Defendants Google Inc, Apple Inc, Yahoo! Inc, AOL Inc, Plaintiffs Interval Licensing LLC, Interval Licensing LLC, Interval Licensing LLC, Interval Licensing LLC.(Nelson, Justin) (Entered: 07/10/2012)

Documents

270

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

INTERVAL LICENSING LLC,
Plaintiff,
v.
AOL, Inc.,
APPLE, INC.,
GOOGLE, INC., and
YAHOO! INC.,
Defendants.

Case No. 2:10-cv-01385-MJP

JOINT STATUS REPORT

ORAL ARGUMENT REQUESTED

Lead Case No. 2:10-cv-01385-MJP

Pursuant to this Court’s June 25, 2012, Order Granting Motion to Lift Stay (Dkt. No. #269), the parties submit the following supplemental Joint Status Report.

---

I. PROPOSED SCHEDULE

A. Court’s Revised Scheduling Order

Except as discussed below, the parties agree that the parameters set in the Court’s Revised Scheduling Order (Dkt. # 248) should remain in place with respect to the ‘652 and ‘314 Patents track.

B. Joint Proposed Schedule

The parties submit the following proposed schedule for this case. With the exception of the one issue that is discussed below, the parties have reached agreement on a proposed schedule for this case. The deadlines in the parties’ proposed schedule are based in large part on the deadlines in the Court’s Revised Scheduling Order (Dkt. No. 248).¹

Event	Date
Interval to provide defendants with list of open discovery issues	7/20/2012
Serve supplemental preliminary infringement contentions on any new claims added during reexamination and new accused products	7/20/2012
Source code for 652/314 products already accused made available for review and meet and confer to discuss making source code available for newly identified 652/314 products	8/1/2012
Defendants respond by this date to the items on Interval’s list of open discovery issues, with any meet and confers soon after	8/4/2012
Serve supplemental preliminary non-infringement contentions	8/17/2012
Meet and confer as to whether supplemental claim construction expert reports are necessary	8/24/2012
Any New Terms Selected for Claim Construction	8/24/2012

____________________________

¹ Defendants reserve the right to object to Interval’s supplementation of its infringement contentions with respect to any claims that were not newly added during reexamination or with respect to any products that are not new products. Defendants also reserve the right to supplement Defendants’ invalidity contentions. Interval likewise reserves the right to object to any supplemental invalidity contentions should Defendants seek a supplementation.

2

---

Event	Date
Preliminary Claim Chart	8/31/2012
Joint Claim Chart and Prehearing Statement	9/14/2012
Serve Supplemental Claim Construction Expert Report on any new issues (if necessary)	9/21/2012
Opening Briefs on Claim Construction	10/5/2012
Response Briefs on Claim Construction	10/26/2012
Markman Hearing	11/9/2012
Close of Fact Discovery	3/1/2013
Opening Expert Reports on All Issues	3/29/2013
Rebuttal Expert Reports Due	4/26/2013
Joint Status Report to Address Trial Issues	5/3/2013
Close of Expert Discovery	5/17/2013
Dispositive Motion Deadline	6/7/2013
Settlement Conference per Local Rule CR 39.1(c)(2) held no later than	7/19/2013
Mediation per Local Rule CR 39.1(c)(3) held no later than	8/16/2013
All Motions in Limine must be filed by and noted on the motion calendar no later than the second Friday thereafter	8/23/2013
Agreed Pretrial Order due	9/6/2013
Trial Briefs, Proposed Voir Dire Questions, Proposed Jury Instructions, and Trial Exhibits due	9/20/2013
Objections to demonstratives, trial exhibits, depositions designations.	10/4/2013
Pretrial Conference	10/8/2013
Trial Date	10/14/2013

3

---

C. Remaining Disputes Concerning The Schedule

1. Motion for Summary Judgment on Indefiniteness

Defendants’ Position:

A vast majority of the claims of the ‘652 and ‘314 Patents include a claim limitation that the Defendants contend is indefinite under 35 U.S.C. § 112, paragraph 1.² Consistent with the Court’s desire to move this case forward, pursuant to the Court’s Standing Order (Dkt. No. 26) Defendants seek leave to file a single joint motion for summary judgment in August 2012 to bring this discrete issue before the Court immediately after the stay has been lifted. Indefiniteness is a question of law that can be decided before claim construction. See Datamize, LLC v. Plumtree Software, Inc., 2004 U.S. Dist. LEXIS 28382, 7-8 (N.D. Cal. July 9, 2004) (granting motion for summary judgment on indefiniteness before the scheduled claim construction hearing), aff’d 417 F.3d 1342 (Fed. Cir. 2005).

Defendants seek to bring this motion before claim construction because resolution of this question that is common to so many claims may substantially narrow the claim construction disputes that the Court would be asked to address. Interval’s response that this dispute should be handled as part of claim construction or by accelerating the whole schedule is inefficient because it will force the Court to receive briefing and address claim constructions for terms that may no longer be at issue if the indefiniteness issue is decided in Defendants’ favor. Defendants’ proposal on the other hand allows the parties to proceed with the claim construction process, but gives the Court the opportunity to address this single, discrete issue early and thereby potentially reduce the work for both the Court and the parties. Defendants provide a brief explanation of the issue below.

The claim language at issue refers to displaying images “in an unobtrusive manner” and in a way that “does not distract a user.” What exactly is unobtrusive or does not distract a user is never defined in the specification. Defendants assert both terms are inherently subjective because

_____________________________

² The limitation at issue is found in each and every claim of the '314 patent and all but 4 of the currently-asserted claims of the '652 patent.

4

---

whether something is unobtrusive or distracts a user (from her primary interaction) depends upon a particular user’s subjective views, what the user was engaged in and how easily a particular user might be distracted. Under Federal Circuit precedent, claims containing inherently subjective language are indefinite under 35 U.S.C. § 112, ¶ 2. For example, the Federal Circuit found similarly subjective language indefinite in Datamize LLC v. Plumtree Software, Inc., 417 F.3d at 1348-1356.

Resolution of this issue in Defendants favor will result in a substantial streamlining of this case, including discovery, claim construction and trial, because most of the claims at issue will have been held invalid.

Interval’s Position:

Defendants have asked to include in the proposed schedule a date of August 2, 2012 for a motion for summary judgment on indefiniteness. Interval believes that such an early deadline is inappropriate for at least three reasons.³ First, the Court already has rejected a similar proposal by Defendants. Before the stay, Defendants told this Court that they planned to submit their summary judgment briefing on indefiniteness together with their claim construction briefing, and they requested five additional pages in their claim construction brief to address indefiniteness. 04/25/2011 Hearing Transcript at 35-36 (Dkt. #231). The Court suggested that it would reject that request, requiring that Defendants’ briefing on indefiniteness be confined to the existing page limitation on the Markman brief. Id. at 35 (THE COURT: “I am all for saving work. I am pretty much against adding pages.”). Consistent with the Court’s suggestion, Defendants appeared to agree that they would include any summary judgment issue on indefiniteness as part of their page limits on the claim construction briefing. Id. at 36. Defendants’ new request for an early motion on indefiniteness appears to be nothing more than a second attempt to increase the page limitation

______________________________

³ Defendants’ statement that indefiniteness is a question of law is misleading at best. “Summary judgment on the issue of indefiniteness is inappropriate where there are issues of fact underlying the indefiniteness determination.” See Am. Med. Sys., Inc. v. Laser Peripherals, LLC, 712 F. Supp. 2d 885, 910 (D. Minn. 2010) (emphasis added).

5

---

for its briefing—if Defendants cannot add pages to their claim construction brief, then they will attempt to file two separate briefs.

Second, the Court’s pre-stay schedule did not provide for an early indefiniteness motion. In fact, Defendants never requested an early deadline for filing of an indefiniteness motion even though the purported basis for Defendants’ motion existed before the stay. Defendants fail to explain why an early summary judgment motion is justified now when they were prepared to file the motion as part of their claim construction brief before the stay.

Third, as Defendants previously told the Court, the indefiniteness issue goes hand-in-hand with claim construction. Id. at 35. Now, however, Defendants request briefing on the indefiniteness issue months before the claim construction briefing—despite the fact that when Interval suggested starting claim construction briefing at the same time as Defendants suggest it file the motion for summary judgment on indefiniteness, Defendants objected. In compromise, Interval agreed to delay the opening claim construction briefs until October, but Defendants now want to keep an early date for summary judgment. Such a proposal makes no sense and is unfair. See Star Scientific, Inc. v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1371 (Fed. Cir. 2008) (“By finding claims indefinite only if reasonable efforts at claim construction prove futile, we accord respect to the statutory presumption of patent validity[.]” (citation omitted) (emphasis added)). If Defendants want the motion for summary judgment due in August, then Opening Claim Construction briefs should be due the same date and the entire schedule (including the claim construction hearing and the trial date) should be moved forward by two months.

Dated: July 10, 2012

Respectfully submitted,

By: /s/ Mark P. Walters
Mark P. Walters, WSBA No. 30819
FROMMER LAWRENCE & HAUG LLP
[address telephone, email]

As Whip for Defendants’ Counsel

By: /s/ Justin A. Nelson
Justin A. Nelson, WSBA No. 31864
SUSMAN GODFREY LLP
[address telephone email]

As Whip for Plaintiff’s Counsel

6

---

CERTIFICATE OF SERVICE

I hereby certify that on July 10, 2012, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following counsel of record:

Attorneys for AOL, Inc.
Cortney Alexander
Robert Burns
Elliot Cook
Gerald Ivey
Molly Terwilliger

Attorneys for Apple, Inc.
David Almeling
Brian Berliner
George Riley
Jeremy Roller
Scott Wilsdon
Neil Yang
Xin-Yi Zhou

Attorneys for Google, Inc.
Aaron Chase
Dimitrios Drivas
John Handy
Warren Heit
Scott Johnson
Shannon Jost
Kevin McGann
Wendi Schepler
Theresa Wang

Attorneys for Yahoo! Inc.
Francis Ho
Richard S.J. Hung
Michael Jacobs
Matthew Kreeger
Dario Machleidt
Eric Ow
Mark Walters
Gregory Wesner

By: /s/ Jami Grounds
Jami Grounds

---