UnifiedOnline Inc fka UOIP

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Pacer Letter today . Great Letter

VIA CM/ECF & HAND DELIVERY
The Honorable Richard G. Andrews
United States District Court for the District of Delaware
844 North King Street
Wilmington, Delaware 19801
Re: ChanBond, LLC v. Atl. Broadband Group, LLC, et al., Cons. C.A. No. 15-842-RGA
Dear Judge Andrews:
Plaintiff ChanBond, LLC (“ChanBond”) respectfully submits this reply to Defendants’
March 6, 2020 response letter concerning trial logistics (D.I. 492).1 Defendants’ response letter
fails to address the substantive issues raised in ChanBond’s letter (D.I. 490), namely that: (i)
Defendants’ seven-month lack of trial availability is unreasonable; (ii) Cox is the bellwether trial;
(iii) scheduling Comcast for the second trial is appropriate; and (iv) merged entities, such as Bright
House, Time Warner and Charter, should be tried together.
First, Defendants’ response letter fails to provide a legitimate reason for their alleged
unavailability for trial over the next seven-months. While Defendants may desire to put off trial as
long as possible, it is not reasonable for Defendants to seek a further half-year delay by relying on
the availability of Delaware counsel, who has not argued in this case, and new counsel, who filed
pro hac vice admissions after this Court inquired about trial availability. As such, the Court should
order trial at its earliest convenience.
Second, the Cox trial is the “bellwether.” Defendants’ proposition that the subsequent
scheduling of trials for the remaining Defendants should be considered subsequent “bellwether”
trials is simply wrong. Multiple, sequential trials is the opposite of a “bellwether” approach.
Third, turning to Comcast, Defendants do not dispute that scheduling Comcast second
would make sense for purposes of a potential global resolution of these matters. Instead,
Defendants urge that ChanBond’s willfulness claim against Comcast makes it an inappropriate
bellwether. (See D.I. 492 at pp. 1-2 (“The parties’ respective stories related to the willfulness
allegation will be a significant focus of the Comcast trial …”).) Of course, whether Comcast goes
second has nothing to do with the first, bellwether Cox trial. Indeed, the fact that Comcast rejected
the inventors’ offers and essentially dared the inventors and their small company to sue is not a
basis to further delay Comcast’s trial. Tellingly, Defendants’ response letter fails to identify any
prejudice to Comcast or any other Defendant should Comcast proceed second. Instead, Defendants
simply allege that they intend to dispute ChanBond’s willfulness allegation, which is further basis
for trial, not delay.
1 ChanBond was surprised by Defendants’ response letter because the parties expressly agreed not
to submit response letters. When discussing how to approach the Court regarding Cox’s trial date
and the identity of the second defendant(s), ChanBond originally proposed that the parties schedule
a teleconference with the Court. Defendants rejected that proposal. The parties then agreed to file a
two-page letter with the Court, with no responses or replies.
600 N. King Street ? Suite 400 Writer’s Direct Access:
P.O. Box 25130 ? Wilmington, DE 19899 [phone]
Zip Code For Deliveries 19801 [e-mail]
Case 1:15-cv-00842-RGA Document 493 Filed 03/09/20 Page 1 of 3 PageID #: 28336
The Honorable Richard G. Andrews
March 9, 2020
Page 2
It is also important to note that every Defendant in this case has a full and fair opportunity to
participate in Cox’s trial, and, effectively, will be doing so. Defendants all share, among other
things, common counsel, common experts, common suppliers (including Cisco and Arris), common
indemnitors,2 common non-infringement arguments, and common invalidity arguments. All
Defendants have joined in the development of evidence and arguments in this case. No Defendant
has identified any specific, material divergence of interest. One key supplier, Cisco, has conceded
that is a real party in interest (before the PTAB in the IPR process) and the PTAB determined that
the other key supplier, Arris, was in privity with the Defendants here. As such, based at least on the
relationship between the parties and their indemnitors, all Defendants will likely be estopped from
re-litigating common issues in subsequent trials.
Fourth, turning to the Charter entities (i.e., Defendants Brighthouse and Time Warner
having merged into defendant Charter), Defendants’ reliance on the Civix-DDI case is misplaced.
In that case, CIVIX sued Loopnet for patent infringement. After the complaint was filed, CoStar
Group, Inc. acquired Loopnet and Loopnet became a CoStar subsidiary. 2012 WL 13020700 at *1.
Loopnet then sought leave to amend its complaint to add CoStar as a party. Id. Putting aside that
the CIVIX-DDI case did not involve a merger as the present circumstances do, the Court noted that
CoStar and Loopnet offered “different systems and services,” that a “parent company is generally
not liable for the acts of its subsidiaries,” and that CIVIX has not alleged a right to relief against
CoStar and Loopnet “with respect to ‘the same accused product or process.’” Id. at *2, 4 (citing §
299). In the present case, Defendants concede that, prior to the merger, Charter, Time Warner and
Bright House were all accused of infringing using the same products. Civix-DDI is thus
inapplicable to this case. Indeed, the Civix-DDI Court noted that if CoStar and Loopnet had been
accused of infringing the same products, the Court would have allowed the joinder. Id. *4 (“[I]t
would appear [299] would permit joinder if CIVIX could allege ‘any claim for relief’ against
CoStar arising from the operation of the Loopnet Systems … [but] CIVIX has not done so.”).
Moreover, as the surviving entity of the merger, Charter’s infringement necessarily arises from the
operation of Bright House’s and Time Warner’s infringing systems that Charter inherited via the
merger.
Putting the merger aside, ChanBond previously demonstrated that joinder under Section 299
was permissible because these three defendants, like all defendants here, used and still use the same
CMTSs and cable modems, and thus the “logical relationship” test was met. (D.I. 442 at 1-2.)
Defendants did not dispute the application of the standard, instead countering that some Defendants
might be competitors and, consequently, could not be joined. (D.I. 445 at 2-3.) Even if
Defendants’ argument was valid (as previously explained, it is not (D.I. 447 at 2)), these merged
companies are no longer competitors. Further, Defendants do not meaningfully distinguish the
ContentGuard Holdings case. Defendants argue that the case is distinguishable because Google
supplied software products to Samsung, but Google was not accused as a vendor of the software.
Defendants ignore that the plaintiff accused Google of infringing via the sale of its own mobile
phones, and separately accused Samsung of infringing via the sale its own mobile phones. Google
and Samsung were and are indisputably direct competitors in the mobile phone market.
Nevertheless, the trial court allowed Google and Samsung to be joined in a single trial.
2 ChanBond obtained discovery in the IPR process that bears on the subject of indemnification.
That discovery is subject to IPR confidentiality provisions. Should the Court so order, ChanBond
and/or Defendants will provide such discovery to the Court.