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IP Innovation v Red Hat and Novell - 1 Year Later
Saturday, October 11 2008 @ 04:51 AM EDT

It's been a while since we last looked in on the IP Innovation LLC v. Red Hat et al patent litigation. In fact, it's been exactly a year. The parties are deep in discovery, with trial set for April 12, 2010[PDF]. That could change, of course. But that's the date set. IP Innovation thinks the trial will take 3 days while Red Hat and Novell estimate between 7 and 10. It takes longer to defend yourself from a patent infringement accusation than to just throw one out there.

So this case gives us a chance to follow a patent litigation, from soup to nuts, play out, and it looks like it will actually be over before we all have children and grandchildren to carry on Groklaw.

So, how's it going in this case, judging from the docket? As you'll see, it's a lot simpler and moving faster than the endless meanderings in the SCO saga. Partly that's because the rules in patent cases force the parties early on to place their cards on the table, as I'll show you. And it's a much simpler fact pattern too. It's also because here, everyone wants the matter settled.

There's a relationship, of course, between a plaintiff hoping there will never be an end and it meandering away from the river into every conceivable side bifurcation, distributary, tidal flat, marshy river delta, coastal lagoon and finally headlong into the tall weeds of bankruptcy court. Slander of title, anyone? So the straightforwardness of patent litigation -- you did it or you didn't, you meant to or you didn't -- is refreshing.

You can see the difference between this patent litigation and the SCO manner in this discovery order [PDF], which is from the court and orders the parties not to wait to be asked by the other side but to turn over, each to the other, items like "the name, address, and telephone number of persons having knowledge of relevant facts", as well as a summary of the person's connection to the case and what he or she knows, as well as "any statement of any party to the litigation". I know. So simple.

But that's just the beginning. Each is ordered to turn over the following:

B. to the extent that any party pleads a claim for relief or defensive matter other than those addressed in the Patent Rules, by June 20, 2008 and without awaiting a discovery request, a copy of all documents, data compilations and tangible things in the possession, custody, or control of the party that are relevant to those additionally pleaded claims or defenses involved in this action. By written agreement of all parties, alternative forms of disclosure may be provided in lieu of paper copies....
Didn't the equivalent take a year in SCO v. IBM, or was it two? I forget. Three? I remember sur-sur-sur replies and such, that's for sure. There is some back and forth in patent cases too, obviously, and patent cases are hard fought, but what you see in this one is discovery motions by the parties by stipulation for more time over and over. The Court's Patent Rules referenced in footnote 1 on page 2 can be found, as it informs us, at the court's website at www.txed.uscourts.gov. Here they are [PDF], 15 pages of Patent Rules. Yes. Texas. Where else? There are federal rules governing litigation too, but these are Texas's own for that court.

If there is a discovery dispute with a hearing scheduled, the parties' lead lawyer and local lawyer on both sides have a standard requirement to meet together at 72 hours before the hearing to try to work out the dispute. They can't send a proxy. It's the lead attorney, and he or she is supposed to appear at the hearing too. That would really crimp Boies Schiller's style, methinks. Anyway, just a lot of very sensible discovery rules, from my perspective, from this judge.

If you want to see the world from the side of the patent plaintiff, here's an article in Law.com about the attorney who got Sony to pay for Immersion Corp's patent, Laura Peter. Interestingly, she feels the patent universe has changed:

Even though she enjoyed working at a place where patents were king, Peter acknowledges finding that might be more difficult now. Court rulings and patent reform efforts have swung more against patent holders and in favor of companies defending themselves against infringement.

"Because the laws have changed so much, it is unclear how beneficial litigation can be now," she said.

From her lips to God's ears, as they say.

The bad part comes later, after the initial decision in Texas. Because patent decisions are so often overturned on appeal, appeals are typical, and that's where it all gets so costly in the end. Patent trolls love that part, because they know the victim entity's attorneys are busily doing math in Legal, trying to figure out if it's worth it to fight.

There's lots more to do in the case, things like claims construction, exchanging logs and proposed technical advisors lists, and looking at page 5 and comparing it with the docket notes, I think you'll see precisely where this case is now, at the point where the plaintiff is supposed to itemize its claims of infringement with specificity, along with contracts or other evidence it is relying on when making its allegations. Then 45 days later, the defendant has to file its invalidity contentions, providing prior art or whatever the defense is. That would have been refreshing in the SCO universe, if it had been required to do so early in discovery, don't you think?

The fact that patent litigation follows this process explains something I noticed. Guess who else IP Innovation has been suing in Texas in addition to Red Hat and Novell? Google and Apple [PDF] and Dell [PDF], but Apple got all claims against it, regarding the '412 patent, dismissed in mid-June, without even having to file an answer. Now, that's the kind of speed you guys will appreciate. Dell got its case, about patent '780, transferred in May to Illinois. Google is trying mediation, to end in December. Google filed counterclaims, and you can read their Answer, Affirmative Defenses and Counterclaims [PDF]. Google asks for a declaratory judgment that the two patents, '785 and '819, they are accused of infringing were not infringed by Google and that they are invalid anyhow. That's better than getting claims just against you thrown out, because it cuts the string, thus protecting everyone similarly situated in the future.

There was a status conference on the 7th of this month in IP Innovation v. Red Hat et al, and we'll be able to read the transcript on that hearing on the 15th. As you know, the federal courts now make us wait 90 days for hearing transcripts, to give parties a chance to redact confidential parts. You can view the transcripts at the courthouse, though. Or you can attend in person, so it's still public. The courts, like everyone else, are trying to adjust to the Internet, trying to balance out everyone's legitimate needs and wants.

That transcript should give us more information. So if I forget to get the transcript, somebody remind me, please. And thank you for your generous contributions this week that made it possible to obtain all these documents. My goal is so we can deepen our understanding of patent litigation, so we can hone our skills in prior art searching, a worthy goal even in a crazy world.

Or is it a world gone crazy?

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

2:07-cv-00447-LED
IP Innovation, LLC. et al v. Red Hat Inc. et al
Leonard Davis, presiding
Date filed: 10/09/2007
Date of last filing: 10/02/2008


History

Doc.
No.
Dates Description
1
Filed & Entered: 10/09/2007
Complaint
Docket Text: COMPLAINT against Red Hat Inc., Novell Inc. ( Filing fee $ 350 receipt number 1290837.), filed by IP Innovation, LLC., Technology Licensing Corporation. (Attachments: # (1) Exhibit A# (2) Exhibit B# (3) Exhibit C# (4) Civil Cover Sheet # (5) List of Parties)(Ward, Thomas)
2
Filed & Entered: 10/09/2007
Notice of Filing of Patent/Trademark Form (AO 120)
Docket Text: Notice of Filing of Patent/Trademark Form (AO 120). AO 120 mailed to the Director of the U.S. Patent and Trademark Office. (Attachments: # (1) Form AO 120)(Ward, Thomas)
3
Filed & Entered: 10/09/2007
Summons Issued
Docket Text: E-GOV SEALED SUMMONS Issued as to Red Hat Inc., Novell Inc.. (ch, )
4
Filed & Entered: 10/11/2007
Notice of Attorney Appearance
Docket Text: NOTICE of Attorney Appearance by Eric M. Albritton on behalf of IP Innovation, LLC., Technology Licensing Corporation (Albritton, Eric)
5
Filed & Entered: 11/08/2007
Summons Returned Executed
Docket Text: E-GOV SEALED SUMMONS Returned Executed by IP Innovation, LLC., Technology Licensing Corporation. Red Hat Inc. served on 11/5/2007, answer due 11/26/2007. (ehs, )
6
Filed & Entered: 11/08/2007
Terminated: 11/09/2007
Motion for Extension of Time to File Answer
Docket Text: MOTION for Extension of Time to File Answer by Red Hat Inc.. (Attachments: # (1) Text of Proposed Order)(Reiter, Mark)
--
Filed & Entered: 11/09/2007
Update Answer Deadline
Docket Text: Answer Due Deadline Updated for Red Hat Inc. to 1/7/2008. (ch, )
7
Filed & Entered: 11/09/2007
Order on Motion for Extension of Time to Answer
Docket Text: ORDER granting [6] Motion for Extension of Time to Answer. Red Hat, Inc. eadline is extended to 1/7/08. Signed by Judge Leonard Davis on 11/9/07. (ch, )
8
Filed & Entered: 11/14/2007
Summons Returned Executed
Docket Text: E-GOV SEALED SUMMONS Returned Executed by IP Innovation, LLC., Technology Licensing Corporation. Novell Inc. served on 11/5/2007, answer due 11/26/2007. (ehs, )
9
Filed & Entered: 11/14/2007
Notice of Attorney Appearance
Docket Text: NOTICE of Attorney Appearance by Josh A Krevitt on behalf of Red Hat Inc. (Krevitt, Josh)
10
Filed & Entered: 11/26/2007
Terminated: 11/27/2007
Motion for Extension of Time to File Answer
Docket Text: MOTION for Extension of Time to File Answer by Novell Inc.. (Attachments: # (1) Text of Proposed Order)(Krevitt, Josh)
--
Filed & Entered: 11/27/2007
Update Answer Deadline
Docket Text: Answer Due Deadline Updated for Novell Inc. to 1/7/2008. (ch, )
11
Filed & Entered: 11/27/2007
Order on Motion for Extension of Time to Answer
Docket Text: ORDER granting [10] Motion for Extension of Time to Answer. Novell's Inc. deadline is extended to 1/7/08. Signed by Judge Leonard Davis on 11/27/07. (ch, )
12
Filed & Entered: 01/04/2008
Terminated: 01/07/2008
Motion for Extension of Time to File Answer
Docket Text: Second MOTION for Extension of Time to File Answer by Novell Inc.. (Krevitt, Josh)
13
Filed & Entered: 01/04/2008
Terminated: 01/07/2008
Motion for Extension of Time to File Answer
Docket Text: Second MOTION for Extension of Time to File Answer Move, or Otherwise Respond (Unopposed) by Red Hat Inc.. (Attachments: # (1)Proposed Order)(Krevitt, Josh) Modified on 1/7/2008 (mpv, ).
--
Filed & Entered: 01/07/2008
Update Answer Deadline
Docket Text: Answer Due Deadline Updated for Red Hat Inc. to 2/1/2008; Novell Inc. to 2/1/2008. (ehs, )
14
Filed & Entered: 01/07/2008
Notice of Attorney Appearance
Docket Text: NOTICE of Attorney Appearance by Mark Nolan Reiter on behalf of Novell Inc. (Reiter, Mark)
15
Filed & Entered: 01/07/2008
Order on Motion for Extension of Time to Answer
Docket Text: ORDER granting [12] Motion for Extension of Time to Answer. Novell Inc has until 2/1/08 to file answer. Signed by Judge Leonard Davis on 1/7/08. (ehs, )
16
Filed & Entered: 01/07/2008
Order on Motion for Extension of Time to Answer
Docket Text: ORDER granting [13] Motion for Extension of Time to Answer. Deadline for deft Red Hat Inc extended to 2/1/08 to file answer. Signed by Judge Leonard Davis on 1/7/08. (ehs, )
17
Filed & Entered: 01/10/2008
Order
Docket Text: ORDER - the court orders the plaintiff to file a notice that the case is ready for scheduling conference when all dfts have either answered or filed a motion to transfer or dismiss. The notice shall be filed within five days of the last remaining dft's answer or motion. The notice shall include a list of any pending motions to transfer or dismiss. Signed by Judge Leonard Davis on 1/10/08. (ch, )
18
Filed: 01/22/2008
Entered: 01/23/2008
Application to Appear Pro Hac Vice
Docket Text: APPLICATION to Appear Pro Hac Vice by Attorney Paul C Gibbons for IP Innovation, LLC. and Technology Licensing Corporation. (APPROVED)(FEE PAID) 6-1-12496 (ch, )
19
Filed: 01/22/2008
Entered: 01/23/2008
Application to Appear Pro Hac Vice
Docket Text: APPLICATION to Appear Pro Hac Vice by Attorney Joseph N Hosteny for IP Innovation, LLC. and Technology Licensing Corporation. (APPROVED)(FEE PAID) 6-1-12496 (ch, )
20
Filed: 01/22/2008
Entered: 01/23/2008
Application to Appear Pro Hac Vice
Docket Text: APPLICATION to Appear Pro Hac Vice by Attorney Arthur A Gasey for IP Innovation, LLC. and Technology Licensing Corporation. (APPROVED)(FEE PAID) 6-1-12496 (ch, )
21
Filed: 01/22/2008
Entered: 01/23/2008
Application to Appear Pro Hac Vice
Docket Text: APPLICATION to Appear Pro Hac Vice by Attorney Raymond P Niro for IP Innovation, LLC. and Technology Licensing Corporation. (APPROVED)(FEE PAID) 6-1-12496 (ch, )
22
Filed: 01/22/2008
Entered: 01/23/2008
Application to Appear Pro Hac Vice
Docket Text: APPLICATION to Appear Pro Hac Vice by Attorney Douglas M Hall for IP Innovation, LLC. and Technology Licensing Corporation. (APPROVED)(FEE PAID) 6-1-12496 (ch, )
23
Filed: 01/22/2008
Entered: 01/23/2008
Application to Appear Pro Hac Vice
Docket Text: APPLICATION to Appear Pro Hac Vice by Attorney David J Mahalek for IP Innovation, LLC. and Technology Licensing Corporation. (APPROVED)(FEE PAID) 6-1-12496 (ch, )
24
Filed & Entered: 02/01/2008
Corporate Disclosure Statement
Docket Text: CORPORATE DISCLOSURE STATEMENT filed by Novell Inc. identifying None as Corporate Parent. (Reiter, Mark)
25
Filed & Entered: 02/01/2008
Corporate Disclosure Statement
Docket Text: CORPORATE DISCLOSURE STATEMENT filed by Red Hat Inc. identifying T Rowe Price Associates Inc (a subsidiary of the publicly held corporation of T Rowe Price Group Inc) and Legg Mason Inc as Corporate Parents. (Reiter, Mark) Modified on 2/4/2008 (mpv, ).
26
Filed & Entered: 02/01/2008
Answer to Complaint
Docket Text: ANSWER to Complaint with Jury Demand, COUNTERCLAIM against all plaintiffs by Novell Inc..(Reiter, Mark)
27
Filed & Entered: 02/01/2008
Answer to Complaint
Docket Text: ANSWER to Complaint with Jury Demand, COUNTERCLAIM against all plaintiffs by Red Hat Inc..(Reiter, Mark)
28
Filed & Entered: 02/01/2008
Notice (Other)
Docket Text: NOTICE by IP Innovation, LLC., Technology Licensing Corporation re [17] Order, and Request for Scheduling Conference (Ward, Thomas)
29
Filed & Entered: 02/11/2008
Response to Non-Motion
Docket Text: RESPONSE to [26] Answer to Complaint, Counterclaim Plaintiffs' Reply To Novell, Inc.'s Counterclaims To Complaint by IP Innovation, LLC., Technology Licensing Corporation. (Hall, Douglas)
30
Filed & Entered: 02/11/2008
Response to Non-Motion
Docket Text: RESPONSE to [27] Answer to Complaint, Counterclaim Plaintiffs' Reply to Red Hat, Inc.'s Counterclaims to Complaint by IP Innovation, LLC., Technology Licensing Corporation. (Hall, Douglas)
31
Filed & Entered: 03/10/2008
Order
Docket Text: Status Conference set for 4/7/2008 01:30 PM before Judge Leonard Davis and Magistrate Judge John D. Love in Tyler Courtroom.. Signed by Judge Leonard Davis on 3/7/08. (ch, )
32
Filed: 04/07/2008
Entered: 04/08/2008
Status Conference
Docket Text: Minute Entry for proceedings held before Judge Leonard Davis and Judge John Love : Status Conference held on 4/7/2008. (Court Reporter Shea Sloan.) (Attachments: # (1) Attorney Sign-In Sheet) (rlf, )
33
Filed & Entered: 04/09/2008
Order
Docket Text: ORDER - in accordance with the status conference held on 4/7/08, this case is set for Markman Hearing set for 7/9/2009 09:30 AM before Judge Leonard Davis., Jury Selection set for 4/6/2010 09:00AM before Judge Leonard Davis., Jury Trial set for 4/12/2010 09:00 AM before Judge Leonard Davis., Pretrial Conference set for 3/18/2010 09:00 AM before Judge Leonard Davis. The parties are to submit agreed Docket Control and Discovery Orders to the court by 4/21/08. Signed by Judge Leonard Davis on 4/9/08. (ch, )
34
Filed & Entered: 04/10/2008
Terminated: 04/11/2008
Motion for Extension of Time to File
Docket Text: Joint MOTION for Extension of Time to File Joint Motion To Modify Dates For Disclosures And Document Production Pursuant To P.R. 3-1, 3-2, 3-3, And 3-4 by IP Innovation, LLC., Technology Licensing Corporation. (Attachments: # (1) Text of Proposed Order Proposed Order)(Gibbons, Paul)
35
Filed & Entered: 04/11/2008
Order on Motion for Extension of Time to File
Docket Text: ORDER granting [34] Motion for Extension of Time to File. Pltf shall identify the asserted claims that they contend have been infringed, separately for each Defendant, pursuant to P.R. 3-1(a), on or before April 11, 2008. Plaintiffs shall comply with the remaining provisions of P.R. 3-1, as well as with P.R. 3-2, on or before May 30, 2008. Defendants shall comply with P.R. 3-3 and 3-4 on or before July 29, 2008. Signed by Judge Leonard Davis on 4/11/08. (ehs, )
36
Filed & Entered: 04/21/2008
Terminated: 04/22/2008
Motion for Extension of Time to File
Docket Text: Joint MOTION for Extension of Time to File Modify Date for Submission of Docket Control and Discovery Orders by IP Innovation, LLC., Technology Licensing Corporation, Red Hat Inc., Novell Inc.. (Attachments: # (1) Exhibit Exhibit 1 - Proposed Order)(Krevitt, Josh)
37
Filed & Entered: 04/22/2008
Order on Motion for Extension of Time to File
Docket Text: ORDER granting [36] Motion for Extension of Time to File. Parties shall submit agreed Docket Control and Discovery Orders to the court by 4/28/08.. Signed by Judge Leonard Davis on 4/22/08. (ch, )
38
Filed & Entered: 04/28/2008
Notice (Other)
Docket Text: NOTICE by IP Innovation, LLC., Technology Licensing Corporation, Red Hat Inc., Novell Inc. Notice of Agreement (Attachments: # (1) Appendix A. Discovery Order# (2) Appendix B. Docket Control Order)(Reiter, Mark)
39
Filed & Entered: 04/29/2008
Order
Docket Text: DISCOVERY ORDER. Signed by Judge Leonard Davis on 4/29/08. (ch, )
40
Filed & Entered: 04/30/2008
Order
Docket Text: DOCKET CONTROL ORDER - Amended Pleadings due by 4/23/2009. Discovery due by 4/24/2009.,Exhibit List due by 4/12/2010. Markman Hearing set for 7/9/2009 09:30 AM (TYLER) before Judge Leonard Davis. Motions due by 3/15/2010. Proposed Pretrial Order due by 1/12/2010. Jury Selection set for 4/12/2010 09:00AM (TYLER) before Judge Leonard Davis. Jury Trial set for 4/6/2010 09:00 AM (TYLER) before Judge Leonard Davis. Pretrial Conference set for 3/18/2010 09:00 AM (TYLER) before Judge Leonard Davis. Signed by Judge Leonard Davis on 4/30/08. (ehs, )
41
Filed & Entered: 05/20/2008
Notice of Attorney Appearance
Docket Text: NOTICE of Attorney Appearance by Amy Elizabeth LaValle on behalf of all defendants (LaValle, Amy)
42
Filed & Entered: 05/22/2008
Terminated: 05/23/2008
Motion for Extension of Time to Complete Discovery
Docket Text: Joint MOTION for Extension of Time to Complete Discovery by Novell Inc.. (Attachments: # (1) Text of Proposed Order)(LaValle, Amy)
43
Filed & Entered: 05/23/2008
Order on Motion for Extension of Time to Complete Discovery
Docket Text: ORDER granting [42] Motion for Extension of Time to Complete Discovery. Deadlines are set forth herein. Signed by Judge Leonard Davis on 5/23/08. (ch, )
44
Filed & Entered: 07/17/2008
Transcript
Docket Text: TRANSCRIPT of Status Conferences held on 4/7/08 before Judges Leonard Davis and John Love. Court Reporter: Shea Sloan, shea_sloan@txed.uscourts.gov.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) business days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.txed.uscourts.gov

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.. Redaction Request due 8/7/2008. Redacted Transcript Deadline set for 8/18/2008. Release of Transcript Restriction set for 10/15/2008. 13 pages. See [32](sms, )

45
Filed & Entered: 08/01/2008
Terminated: 08/04/2008
Motion for Extension of Time to Complete Discovery
Docket Text: Joint MOTION for Extension of Time to Complete Discovery Joint Motion To Extend Discovery Deadlines by IP Innovation, LLC., Technology Licensing Corporation. (Attachments: # (1) Text of Proposed Order)(Gibbons, Paul)
46
Filed & Entered: 08/04/2008
Order on Motion for Extension of Time to Complete Discovery
Docket Text: ORDER granting [45] Motion for Extension of Time to Complete Discovery. Deadlines are set forth herein. Signed by Judge Leonard Davis on 8/4/08. (ch, )
47
Filed & Entered: 09/15/2008
Terminated: 09/16/2008
Motion for Extension of Time to Complete Discovery
Docket Text: Joint MOTION for Extension of Time to Complete Discovery by IP Innovation, LLC.. (Attachments: # (1) Text of Proposed Order Granting Joint Motion to Extend Discovery Deadlines)(Gibbons, Paul)
48
Filed & Entered: 09/16/2008
Order on Motion for Extension of Time to Complete Discovery
Docket Text: ORDER granting [47] Motion for Extension of Time to Complete Discovery Deadlines. Deadlines are set forth herein. Signed by Judge Leonard Davis on 9/16/08. (ch, )
--
Filed & Entered: 10/02/2008
Set/Reset Hearings
Docket Text: Set/Reset Hearings: Jury Selection set for 4/6/2010 09:00AM before Judge Leonard Davis. Jury Trial set for 4/12/2010 09:00 AM before Judge Leonard Davis. (NOTE: THIS IS TO CORRECT THE DOCKET ENTRY OF THE DOCKET CONTROL ORDER [40]. (rlf, )
49
Filed & Entered: 10/08/2008
NOTICE
Docket Text: NOTICE by IP Innovation, LLC., Technology Licensing Corporation Plaintiffs' Notice of Compliance With Initial Disclosures Pursuant To Patent Rules 3-1 And 3-2 (Hall, Douglas)

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