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Lodsys - An Update On The Lodsys Cases
Monday, September 26 2011 @ 09:00 AM EDT

Not a great deal has happened in the various Lodsys cases since we last wrote. A lot of the activity pertains to whether Lodsys will get dragged into federal district court somewhere other than the Eastern District of Texas.

To recount all of the cases, Lodsys has four pending cases in the Eastern District of Texas against a variety of defendants. In turn, Lodsys is the defendant in eight active declaratory judgment actions - four in the Northern District of Illinois, two in the Eastern District of Wisconsin, one in Arizona, and one in the Southern District of California. There was a fifth declaratory judgment action brought against Lodsys in the Eastern District of Wisconsin by ESET, but ESET has voluntarily dismissed that action.

The Lodsys v. Brother, et al case in the Eastern District of Texas is the furthest along, and it has been set for trial . . . in September 2014. 126 [PDF] So much for the Eastern District of Texas's "rocket docket." In the meantime the initial case management conference has been set for October 31. The interesting thing about the late trial date is that it likely provides sufficient time for the presently pending reexaminations to run their course before the U.S. Patent and Trademark Office before the Markman hearing occurs in 2014.

In the Lodsys v. Combay case we are still awaiting answers from a number of defendants, and most importantly, we are awaiting the court's ruling on whether Apple is to be allowed to intervene. No hearing or ruling date has been set on Apple's motion, but all of the responses and replies have now been filed.

The only significant matter to occur in the Lodsys v. adidas case has been the dismissal of Stanley, Black and Decker. 52 [PDF] That dismissal is with prejudice, so Lodsys cannot entertain a new suit against Stanley. Adidas has also answered the complaint. 46 [PDF] The only other minor change has been the substitution of CVS Pharmacy Inc. for CVS Caremark Corporation, a change requested by CVS and consented to by Lodsys.

Nothing meaningful has occurred in the Lodsys v. DriveTime case.

Most of the declaratory judgment actions are still involved in attempting to establish ties between Lodsys and those other jurisdictions. Of course, this is challenging since Lodsys is a shell company with a storefront office in Texas, what appears to be a storefront office in Illinois, and a CEO and sole employee who lives in Wisconsin. That hasn't stopped the various plaintiffs in these actions from doing their best to tie Lodsys to these other jurisdictions.

The DJ action where we have the most insight into the jurisdiction issue is the action brought by DriveTime against Lodsys in Arizona. DriveTime filed 15 different exhibits supporting their argument that Lodsys is subject to the jurisdiction of the federal court in Arizona. (See our earlier story on the DriveTime argument) At the same time, we gain some insight into Lodsys's arguments as to why it should not be subject to jurisdiction in the Eastern District of Illinois from the New York Times declaratory judgment action, and Lodsys CEO Mark Small's declaration (7 [PDF]) in support of Lodsys's motion to dismiss that action. Small's primary arguments: I live and work in Wisconsin; Lodsys has no offices or employees in Illinois; and all of the infringement suits Lodsys has brought have been in Texas which is the only place where Lodsys maintains a [pseudo] office. I added the "pseudo" adjective because the only "office" Lodsys has is a shared office space, and it is clear no one works from that office.

We have also added two declaratory judgment actions we weren't previously following: the DJ action brought by RightNow Technologies in the Eastern District of Wisconsin, and the DJ action brought by Wolfram Alpha, also in the Eastern District of Wisconsin.

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

Documents

LodsysvBrother-126:

FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

___________________________

LODSYS, LLC

V.

BROTHER INTERNATIONAL

CORPORATION, ET AL.

___________________________

CIVIL NO. 2:11-CV-90(TJW)

ORDER

___________________________

Due to the undersigned’s pending retirement and the fact that there is currently uncertainty regarding who will take over as Magistrate Judge in the Marshall Division, the Court finds it is unnecessary to hold a status conference. The main reason the Court holds the status conferences in the patent cases is to give the parties a trial setting and a claim construction setting and then allow the parties to announce whether they will consent to the Magistrate Judge. The Court assumes parties will be reluctant to consent to a Magistrate Judge when it is not currently known who that will be,1 so it would be futile to require the parties to attend a hearing merely for this Court to give the parties a trial setting and claim construction setting. Rather, it is the purpose of this Order to assign the parties that setting.

This case is now set for jury selection on September 2, 2014 and for a claim construction on May 8, 2014. The parties shall submit their proposed docket control and discovery orders to the court on October 14, 2011 If the parties are unable to resolve their disagreements concerning these orders, the parties shall submit to the court their competing proposals along with a summary of their disagreements. For purposes of computing the time deadlines under the local patent rules, the court

________________________

1 The Court may, at a later date whenever a new Magistrate Judge is appointed, require the parties to notify the Court whether they will consent to the new Magistrate Judge.

deems October 31, 2011 to be the date of the initial case management conference. As a result, the “Disclosure of Asserted Claims and Infringement Contentions” is due on October 21, 2011.

It is so ORDERED.

Signed this 22nd day of September, 2011. /s/T. John Ward
T. JOHN WARD UNITED STATES DISTRICT JUDGE


LodsysvAdidas-52:

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION

___________________

LODSYS, LLC,

Plaintiff,

v.

ADIDAS AMERICA INC.;
BBY SOLUTIONS, INC.;
BEST WESTERN INTERNATIONAL, INC.;
CVS CARMARK CORPORATION;
SAM’S WEST, INC.;
STANLEY, BLACK & DECKER, INC.;
THE CONTAINER STORE, INC.;
THE TEACHING COMPANY, LLC;
VEGAS.COM, LLC;
VITAMIN SHOPPE, INC.,
Defendants.

____________________

CIVIL ACTION NO. 2:11-cv-283

NOTICE OF DISMISSAL

____________________

Plaintiff Lodsys, LLC (“Lodsys”), pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i), hereby notifies the Court of its dismissal of all claims in this action between Lodsys and Defendant Stanley, Black & Decker, Inc., with prejudice and with each party to bear its own costs, expenses, and attorneys’ fees.

Dated: September 20, 2011.

Respectfully Submitted,

By: /s/ Christopher M. Huck
Michael A. Goldfarb
(admitted pro hac vice)
Christopher M. Huck
(admitted pro hac vice)
KELLEY, DONION, GILL,
HUCK & GOLDFARB, PLLC
[address, telephone, fax, email]


NYTvLodsys-7:

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

______________________

THE NEW YORK TIMES COMPANY,

Plaintiff,

v.

Defendant.

_______________________

Civil Action No. 1 l-cv-4004

The Hon. Charles R. Norgle, Sr.

JURY TRIAL DEMANDED

_______________________

DECLARATION OF MARK SMALL IN
SUPPORT OF DEFENDANT'S MOTION TO DISMISS

I, Mark Small, declare as follows:

1. I am the Chief Executive Officer for Defendant Lodsys, LLC ("Lodsys"). I have personal knowledge of the facts set forth in this declaration and, if called as a witness, could and would testify completely to such facts under oath.

2. I reside in Wisconsin. I own a home in Wisconsin, and have lived in that home for the past 10 years. I have a Wisconsin driver's license. I am registered to vote in Wisconsin. And I stand ready, willing, and able to provide the Court any relevant documentary evidence concerning my Wisconsin residency.

3. I conduct business for Lodsys from Wisconsin. During the time I have provided services for Lodsys, I have not resided in or conducted business from Illinois.

4. Lodsys is a Texas limited liability company, and its principal place of business is at 505 East Travis Street, Suite 207, Marshall, Texas. Lodsys maintains an office at its headquarters in Marshall, Texas.

5. Lodsys does not have (nor has it ever had) any employees, offices, or facilities in Illinois. It does not maintain any bank accounts or other assets in Illinois. Nor does it lease or own any real or other property in Illinois.

6. Lodsys has not entered into any exclusive licenses (in Illinois or elsewhere) of U.S. Patents Nos. 5,999,908; 7,133,834; 7,222,078; or 7,620,565. Nor does Lodsys control or direct the business operations of its licensees. And Lodsys has not filed any lawsuits for patent infringement (or otherwise) in Illinois.

7. Attached hereto as Exhibit A is a true and correct copy of the preview page of my web profile on Linkedln, which references the "Greater Chicago Area." I have not updated the geographical reference on my Linkedln profile for several years. I was previously employed by a company with a regional office in Chicago, Illinois. While employed by that company, I still lived in and conducted business from Wisconsin.

8. Attached hereto as Exhibit B is a true and correct copy of the complaint Lodsys filed on February 11, 2011 in the Eastern District of Texas, styled as Lodsys, LLC v. Brother International Corporation, et al, Case No. 2:1 l-CV-90.

9. Attached hereto as Exhibit C is a true and correct copy of the complaint Lodsys filed on May 31, 2011 in the Eastern District of Texas, styled as Lodsys, LLC v. Combay, Inc., et al, Case No. 2:ll-CV-272.

10. Attached hereto as Exhibit D is a true and correct copy of the complaint Lodsys filed on June 10, 2011 in the Eastern District of Texas, styled as Lodsys, LLC v. adidas America, Inc., etal, Case No. 2:ll-CV-283.

2

11. Attached hereto as Exhibit E is a true and correct copy of the complaint Lodsys filed (or is in the process of filing) on July 5, 2011 in the Eastern District of Texas, styled as Lodsys, LLC v. ESET, LLC, et al.

12. Attached hereto as Exhibit F is a true and correct copy of the contact information for Lodsys's registered agent in Austin, Texas.

I declare under penalty of perjury that the foregoing is true and correct. Executed on July 5, 2011, at Oconomowoc, Wisconsin.

/s/Mark Small
Mark Small

3



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