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Lodsys - Another Update on the Lodsys Cases - as of 24 October 2011
Tuesday, October 25 2011 @ 11:00 AM EDT

Time to take a peek to see what has been happening in the Lodsys cases. At this juncture most of the significant events have been largely procedural and mainly in the cases in the Northern District of Illinois.

There were four declaratory judgment (DJ) actions filed against Lodsys in the N.D. Illinois on the belief that Lodsys maintained an office in the Chicago area. That belief has not been substantiated, and the Illinois cases have headed in a variety of directions. Here is the present status of each of the Illinois cases:

New York Times v. Lodsys

This case has been dismissed without prejudice by the consent of the parties and by order of the court. New York Times v. Lodsys (N.D. Ill.) (38 [PDF; Text]) The Eastern District of Texas case between these parties remains pending.

OpinionLab v. Lodsys

As with the New York Times case, the parties have stipulated to a dismissal with prejudice of this case, OpinionLab v. Lodsys (N.D. Ill.). (45 [PDF; Text]) The Eastern District of Texas case between these parties remains pending.

ForeSee v. Lodsys

Instead of a dismissal, in ForeSee v. Lodsys (N.D. Ill.) the parties have stipulated to a transfer of venue of this case to the Eastern District of Wisconsin where several other DJ actions remain pending against Lodsys. (45 [PDF; Text]) As a part of the stipulation, Lodsys has retained its right to seek a further transfer of venue to the E.D. Texas where Lodsys's complaint against ForeSee remains pending. The other interesting point in this stipulation is that Lodsys has stipulated that ForeSee's DJ action could have been brought in the Eastern District of Wisconsin, which should help the other DJ plaintiffs in that venue (Wolfram, RightNow).

LivePerson v. Lodsys

The one case still remaining in the E.D. of Illinois is the LivePerson declaratory judgment action against Lodsys.

Other Lodsys Cases

The only other event of note in the various Lodsys cases has been the entry of an order in the adidas case in the E.D. of Texas where a number of claims have been voluntarily dismissed with prejudice with limitation on the joint motion of the parties. ( Lodsys v. adidas (E.D. Tex.) 71 [PDF; Text]) The limitation is that the dismissal applies only to the extent that "such claims relate to products and/or services provided to [one of the named parties] by OpinionLab." The named parties are CVS Pharmacy, Sam's West, The Container Store, and Vegas.com. The limited dismissal does not apply to adidas, Best Buy, Best Western, Teaching Company, or Vitamin Shoppe. The claims under the '078 patent remain pending against Sam's West and Vitamin Shoppe, and as we learned some weeks ago, Stanley Black & Decker has been completely dismissed from this case. (Lodsys - An Update On The Lodsys Cases).

All of the other live Lodsys cases are continuing to move through procedural matters.

Skip To Comments


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

Documents:

New York Times v. Lodsys (N.D. Ill.) - 38:

UNITED STATES DISTRICT COURT
FOR THE Northern District of Illinois − CM/ECF LIVE, Ver 4.2
Eastern Division

The New York Times Company

Plaintiff,

v.

Lodsys, LLC

Defendant.

Case No.: 1:11−cv−04004
Honorable Ronald A. Guzman

_________________________________________

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Tuesday, October 18, 2011:

MINUTE entry before Honorable Ronald A. Guzman: Pursuant to plaintiff's notice of dismissal, this case is dismissed without prejudice and with each party to bear its own costs, expenses and attorneys' fees. Any pending motions or schedules are stricken as moot. Civil case terminated. Mailed notice (cjg,)

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was generated by CM/ECF, the automated docketing system used to maintain the civil and criminal dockets of this District. If a minute order or other document is enclosed, please refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our web site at www.ilnd.uscourts.gov.


OpinionLab v. Lodsys (N.D. Ill.) - 45:

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

OPINIONLAB, INC.

Plaintiff,

v.

LODSYS, LLC.

Defendant.

Civil Action Nos. 11-CV-4015
The Hon. Ronald A. Guzman

________________________________

STIPULATION OF DISMISSAL WITH PREJUDICE

Pursuant to Rule 41(a) of the Federal Rules of Civil Procedure, Plaintiff OpinionLab, Inc. (“OpinionLab”), and Defendant Lodsys, LLC (“Lodsys”) hereby stipulate to a dismissal with prejudice of the above-entitled action, each party to bear said party’s own fees and costs. The parties further stipulate and agree to waive any right to appeal. The parties stipulate and agree that all pending motions shall be deemed withdrawn upon entry of this dismissal.

Dated: October 14, 2011

Respectfully submitted,

OPINIONLAB, INC.

By: /s/ Robert J Barz
Alan L. Barry
Robert J. Barz
K&L GATES LLP
[address telephone]

J. Michael Keyes
K&L GATES LLP
[address telephone fax]

Mark G Knedeisen

K&L GATES, LLP
[address telephone]

Attorneys for Plaintiff OpinionLab, Inc.

By: /s/ Christopher M. Huck
William W. Flachsbart
Michael R. La Porte
FLACHSBART & GREENSPOON, LLC
[address]

Michael Goldfarb
Christopher M. Huck
KELLEY, DONION, GILL, HUCK & GOLDFARB, PLLC
[address]

Attorneys for Defendant Lodsys, LLC

2


ForeSee v. Lodsys (N.D. Ill.) - 45

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

FORESEE RESULTS, INC.

Plaintiff,

v.

LODSYS, LLC.

Defendant.

Civil Action Nos. 11-CV-3886

The Hon. Ronald A. Guzman

________________________________

STIPULATED MOTION TO TRANSFER VENUE

Pursuant to 28 U.S.C. § 1404(a), Plaintiff ForeSee Results, Inc. (“ForeSee”) and Defendant Lodsys, LLC (“Lodsys”) hereby stipulate to, and respectfully request, transfer of venue to the United States District Court for the Eastern District of Wisconsin, and in support thereof, respectfully state as follows:

1. On June 7, 2011, ForeSee filed its Complaint for Declaratory Judgment (the “Complaint”) against Lodsys in this District. (Dkt. No. 1.)

2. On July 5, 2011, Lodsys moved to dismiss the Complaint for lack of personal jurisdiction and improper venue. (Dkt. No. 14.)

3. On July 22, 2011, ForeSee moved for jurisdictional discovery. (Dkt. No. 29.) On July 26, 2011, this Court granted that motion. (Dkt. No. 32.)

4. The parties have since worked in a cooperative manner during the discovery process to resolve certain discovery disputes, and also engaged in good faith discussions concerning alternatives to a protracted jurisdictional dispute. In view of those discussions, the parties have decided to forego completion of jurisdictional discovery and briefing on Lodsys’s motion to dismiss in favor of transferring this case to the Eastern District of Wisconsin. The parties have reached this agreement without waiving their respective positions on whether

jurisdiction and venue are proper in this District.

5. The Eastern District of Wisconsin is a District in which ForeSee’s Complaint against Lodsys could have been filed.

6. Transferring this case to the Eastern District of Wisconsin will promote the interests of justice and judicial economy, rather than continuing to litigate the issue of jurisdiction and venue in this District.

7. The parties reserve all rights and arguments concerning whether venue would be more appropriate in the Eastern District of Texas.

Accordingly, the parties hereby stipulate and agree to transfer venue to the United States District Court for the Eastern District of Wisconsin, and respectfully request that this Court enter an order effectuating that transfer. The parties also stipulate and agree that all motions pending in this action shall be deemed withdrawn upon entry of the Court’s Order transferring venue. The parties further stipulate and agree that Lodsys shall have thirty (30) days to answer or otherwise respond to ForeSee’s Complaint following docketing of this transferred action in the Eastern District of Wisconsin.

Dated: October 24, 2011

Respectfully submitted,

FORESEE RESULTS, INC.

By: /s/ Brent A. Hawkins
Brent A. Hawkins
Brett B. Bachtell
MCDERMOTT WILL & EMERY, LLP
[address]

Michael E. Shanahan
MCDERMOTT WILL & EMERY, LLP
[address telephone fax]

2

Attorneys for Plaintiff ForeSee, Inc.

By: /s/ William W. Flachsbart
William W. Flachsbart
Michael R. La Porte
FLACHSBART & GREENSPOON, LLC
[address]

Michael Goldfarb
Christopher M. Huck
KELLEY, DONION, GILL, HUCK & GOLDFARB, PLLC
[address]

Attorneys for Defendant Lodsys, LLC

3


Lodsys v. adidas (E.D. Tex.) - 71

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 (DF)

______________________________

ORDER

Having considered Plaintiff Lodsys, LLC (“Lodsys”) and Defendants CVS Pharmacy, Inc. (“CVS”), Sam’s West, Inc. (“Sam’s West”), The Container Store, Inc. (“Container Store”), and Vegas.com, LLC’s (“Vegas.com”) Joint Motion to Dismiss Certain Claims With Prejudice based on the settlement of certain claims asserted by and between them, the Court finds that good cause exists for granting the motion. The Joint Motion to Dismiss Certain Claims With Prejudice is GRANTED. It is hereby

ORDERED, ADJUDGED AND DECREED that the following claims and counterclaims are hereby dismissed with prejudice:

(a) Lodsys’s claim for “Infringement Of U.S. Patent No. 5,999,908” against CVS, and any and all other claims for infringement against CVS, to the extent such claims relate to products and/or services provided to CVS by OpinionLab;

(b) CVS’s counterclaim for “Declaratory Judgment Of Non-Infringement Of The ‘908 Patent” against Lodsys;

1

(c) CVS’s counterclaim for “Declaratory Judgment Of Invalidity Of The ‘908 Patent” against Lodsys;

(d) Lodsys’s claim for “Infringement Of U.S. Patent No. 5,999,908” against Sam’s West, and any and all other claims for infringement against Sam’s West, to the extent such claims relate to products and/or services provided to Sam’s West by OpinionLab, Inc.;

(e) Sam’s West’s counterclaim for “Declaratory Judgment Of Non-Infringement Of The ‘908 Patent” against Lodsys;

(f) Sam’s West’s counterclaim for “Declaratory Judgment Of Invalidity Of The ‘908 Patent” against Lodsys;

(g) Lodsys’s claim for “Infringement Of U.S. Patent No. 5,999,908” against Container Store, and any and all other claims for infringement against Container Store, to the extent such claims relate to products and/or services provided to Container Store by OpinionLab;

(h) Container Store’s counterclaim for “Declaratory Judgment Of Non-Infringement Of The ‘908 Patent” against Lodsys;

(i) Container Store’s counterclaim for “Declaratory Judgment Of Invalidity Of The ‘908 Patent” against Lodsys;

(j) Lodsys’s claim for “Infringement Of U.S. Patent No. 5,999,908” against Vegas.com, and any and all other claims for infringement against Vegas.com, to the extent such claims relate to products and/or services provided to Vegas.com by OpinionLab;

(k) Vegas.com’s counterclaim for “Declaratory Judgment Of Non-Infringement Of The ‘908 Patent” against Lodsys; and

(l) Vegas.com’s counterclaim for “Declaratory Judgment Of Invalidity Of The ‘908 Patent” against Lodsys.

2

It is further ORDERED that all costs, expenses, and attorneys’ fees related to the above listed claims and counterclaims are to be borne by the party that incurred them.

So ORDERED.

SIGNED this 20th day of October, 2011

/s/ David Folsom
DAVID FOLSOM
UNITED STATES DISTRICT JUDGE

3



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