Vertical Computer Systems Inc (fka VCSY)

[lbman]

courtesy of JohnyQuan on Ragging Bull PACER INFO:
BIJAL V. VAKIL (Cal. Bar No. 192878)
[e-mail]
NOAH A. BRUMFIELD (Cal. Bar No. 203653)
[e-mail]
JENNIFER P. GOSSAIN (Cal. Bar No. 254174)
[e-mail]
THOMAS C. FLYNN (Cal. Bar No. 257945)
[e-mail]
WHITE & CASE LLP
5 Palo Alto Square, 9th Floor
3000 El Camino Real
Palo Alto, CA 94306
Telephone: [phone]
Facsimile: 650.213.8158
Attorneys for Plaintiff and Counterclaim Defendant
Interwoven, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
INTERWOVEN, INC.,
Plaintiff,
vs.
VERTICAL COMPUTER SYSTEMS, INC.
Defendant.
No. 3:10-cv-4645-RS
AMENDED SUPPLEMENTAL JOINT
CASE MANAGEMENT STATEMENT
AND [PROPOSED] SCHEDULING
ORDER
Pursuant to Federal Rule of Civil Procedure 26(f) and Northern District of California Local
Rule 16-9, Plaintiff Interwoven, Inc. (“Interwoven”) and Defendant Vertical Computer Systems,
Inc. (“Vertical”) submit the following Amended Supplemental Joint Case Management Statement.
The parties conducted teleconferences and exchanged proposals during the week of February 20,
2012, and filed a Supplemental Joint Case Management Statement on February 23, 2012 in advance
of the case management conference then scheduled for March 1, 2012. See Dkt. No. 98. That case
management conference was subsequently rescheduled for May 24, 2012. See Dkt. Nos. 101, 102.

2 JOINT CASE MANAGEMENT STATEMENT
CASE NO. 10-CV-4645-RS
Counsel for the parties conducted a further teleconference on May 11, 2012 to discuss filing this
amended statement. Bijal Vakil, and Thomas Flynn participated in these conferences on behalf of
Interwoven. Vasilios Dossas participated on behalf of Vertical.
1. Jurisdiction and Service
This Court has jurisdiction over this case under the patent laws of the United States, Title 35
of the United States Code, with a specific remedy sought based upon the laws authorizing actions
for declaratory judgment in the federal courts of the United States, 28 U.S.C. §§ 2201 and 2202.
This Court has subject matter jurisdiction over this action, pursuant to 28 U.S.C. §§ 1331, 1338(a),
and 2201. Venue in this District is proper under 28 U.S.C. §§ 1391 and 1400. Interwoven served
Vertical with its complaint for declaratory judgment on November 17, 2010. Vertical served
Interwoven with its counterclaim for patent infringement on February 22, 2011.
2. Facts
Interwoven is a corporation organized under the laws of the State of Delaware. Interwoven
has a principal place of business at 160 East Tasman Drive, San Jose, CA 95l34. Interwoven filed
this declaratory judgment action against Vertical on October 14, 2010.
Vertical is a corporation organized under the laws of Delaware and has its principal place of
business at 101 W. Renner Road, Richardson, Texas 75082. Vertical asserts that it is the owner of
United States Patent Nos. 6,826,744 (the “’744 Patent”) and 7,716,629 (the “’629 Patent”)
(collectively, the “Patents-In-Suit”).
Interwoven filed this action in the Northern District of California on October 14, 2010. On
November 15, 2010, Vertical filed suit in the United States District Court for the Eastern District of
Texas (the “Vertical Action”) alleging that Interwoven, Samsung Electronics Co., Ltd., Samsung
Electronics America, Inc., LG Electronics Mobilecomm USA Inc., and LG Electronics Inc.
infringe the Patents-In-Suit. Interwoven and the Samsung parties moved to dismiss, stay, or
transfer that case to the Northern District of California. Interwoven’s motion to dismiss was
granted as to Interwoven on May 10, 2011. Samsung’s motion was denied on May 10, 2011. The


3 JOINT CASE MANAGEMENT STATEMENT
CASE NO. 10-CV-4645-RS
Vertical Action remains pending in the Eastern District of Texas against the LG and Samsung
parties.
3. Legal Issues
Plaintiff’s Statement: The principal legal issues in this case are the invalidity of the
Patents-In-Suit and the non-infringement of the Patents-In-Suit by Interwoven’s products as well as
the relevant prior art and inequitable conduct. Interwoven filed a declaratory judgment suit against
Vertical on October 14, 2010. Interwoven contends that the Patents-In-Suit are invalid under 35
U.S.C. §§ 101, 102, 103, and/or 112, and unenforceable as a result of inequitable conduct before the
United States Patent and Trademark Office (“PTO”). Vertical then filed a counterclaim for patent
infringement. Vertical purports to be the owner of the Patents-In-Suit and has asserted in the
Vertical Action and in this case that Interwoven infringes these patents. Interwoven contends that
its products do not infringe literally or under the doctrine of equivalents. Interwoven, therefore,
asserts that it is entitled to a declaration that the Patents-In-Suit are invalid, unenforceable, and/or
not infringed by Interwoven, and that Vertical is not entitled to damages for patent infringement or
to any other form of relief. Interwoven asserts this is an exceptional case under 35 U.S.C. § 285 and
that Interwoven is entitled to attorneys’ fees and costs. Interwoven also denies any concealment of
its publicly available products.
Requests for reexamination of both of the Patents-In-Suit were filed on January 6, 2012, and
a revised reexamination request for the ’629 Patent, correcting a typographical error, was filed on
February 3, 2012. The request for reexamination of the ’744 Patent asked the PTO to reexamine
claims 1-11, 18-19, 21, 23-33, 40-41, and 45-53, which are the only claims of the ’744 Patent
asserted against Interwoven in this action. The order granting reexamination of the ’744 Patent
issued on February 16, 2012, and a first office action issued on April 18, 2012. The first office
action rejected all but 8 of the 37 claims asserted in this litigation and for which reexamination was
requested, including both independent claims. The request for reexamination of the ’629 Patent
asked the PTO to reexamine claims 1-6, 8-17, 19-26, and 28-32, which are the only claims of
the ’629 Patent asserted against Interwoven in this action. The corrected request seeking

4 JOINT CASE MANAGEMENT STATEMENT
CASE NO. 10-CV-4645-RS
reexamination of the ’629 Patent was received on March 5, 2012, and an order granting
reexamination issued on March 29, 2012. There has not yet been a first office action in the
reexamination of the’629 Patent.
Defendant’s Statement: Vertical contends that Interwoven manufactures, makes, uses,
sells and/or offers for sale software such as the Interwoven TeamSite product that infringes at least
claims 1-11, 18-19, 21, 23-33, 40-41 and 45-53 of the '744 Patent and 1-6, 8-17, 19-26 and 28-32 of
the '629 Patent. Interwoven has also induced others to infringe and/or has contributorily infringed
those claims of the '744 and '629 Patents. Vertical contends that Interwoven intentionally
concealed its infringement of the '744 Patent and that Interwoven continues to infringe the '744 and
'629 Patents. Accordingly, Interwoven is a willful infringer of the '744 and '629 Patents. Thus, this
case is exceptional under 35 U.S.C. §285, and Vertical is entitled to multiplication of its damages,
up to three times, and to its attorneys' fees and costs. Vertical also seeks a permanent injunction.
Vertical did not file a patent owner's statement in response to Interwoven's reexamination
petitions and allowed the Patent Office to issue an office action without the benefit of Vertical's
rebuttal. Even so, the Patent Office, in the first office action for the '744 patent reexamination,
confirmed the patentability of claims 6, 8, 19, 30, 32, 41, 50 and 51, did not reexamine claims 12-17,
20, 34-39 and 42-43, and rejected claims 1-5, 7, 9-11, 18, 21-29, 31, 33, 40, 44-47 and 53. Thus,
some of the asserted claims have already survived reexamination even before Vertical has had a
chance to reply. And, it is axiomatic that Vertical need only prove infringement of only one claim
of a patent-in-suit to prove infringement of that patent. Panduit Corp. v. Dennison Mfg. Co., 836
F.2d 1329, 1330, fn.1 (Fed. Cir. 1987).
4. Motions
On January 24, 2011, the Court denied Vertical’s motion to transfer or dismiss Dkt. No. 8,
filed December 7, 2010, and denied Interwoven’s motion to enjoin, Dkt. No. 16, filed December 10,
2010. See Dkt. No. 35. On May 2, 2011, the Court denied as moot Vertical’s motion to dismiss
pursuant to Fed. R. Civ. P. 12(b)(6) and denied Vertical’s renewed motion to transfer (Dkt. No. 38),
filed February 3, 2011. See Dkt. No. 54. The Court conducted a Markman hearing on December 14,

5 JOINT CASE MANAGEMENT STATEMENT
CASE NO. 10-CV-4645-RS
2011, and issued its Markman order on December 30, 2012. See Dkt. Nos. 81, 83. Interwoven
filed a Motion to Stay this case pending the completion of the reexamination of the Patents-In-Suit
on January 8, 2012. The Court denied that motion on March 8, 2012.
Vertical filed a motion for entry of its proposed protective order on April 24, 2012, which
the Court referred to Magistrate Judge Spero. Interwoven opposed Vertical’s motion on May 8,
2012, and requested that the Court enter Interwoven’s proposed protective order instead. Vertical
filed a reply in support of its motion on May 15, 2012. This motion is set for hearing on June 1,
2012.
(a) Plaintiff’s Statement: Interwoven anticipates that it will file motions for summary
judgment on the issues of invalidity, non-infringement, and unenforceability due to
inequitable conduct in an effort to streamline this action and promote judicial economy.
(b) Defendant’s Statement: Vertical anticipates that it may file a motion for summary
judgment that the Patents-In-Suit are not unenforceable due to alleged inequitable
conduct.
5. Amendment of Pleadings
No supplement needed.
6. Evidence Preservation
No supplement needed.
7. Disclosures
The parties served initial disclosures on May 26, 2011.
8. Discovery
Discovery is ongoing. The parties have exchanged written discovery and have made initial
and supplemental productions of documents. There have been no depositions noticed or taken. No
expert witnesses have been identified by either side, or engaged by either of the parties. Document
production is not yet complete. The parties have not yet agreed on a protective order in this case,
and in the meantime have been operating under Patent L.R. 2-2 which governs confidentiality in the
absence of a Court order.


6 JOINT CASE MANAGEMENT STATEMENT
CASE NO. 10-CV-4645-RS
Vertical and Interwoven agree that they should be permitted to amend, respectively, their
infringement contentions and invalidity contentions. Amendment is proper at this stage under
Patent L.R. 3-6. Interwoven believes amendment is proper because (1) certain constructions
adopted in the Court’s December 30, 2011 Markman order differ from those proposed by the
parties, and because (2) Interwoven has located additional prior art not discovered in its prior,
diligent search. Vertical believes amendment is proper because it has not yet reviewed certain
highly confidential Interwoven technical information, including the TeamSite source code, or taken
the deposition of any technical witnesses for Interwoven. The parties propose dates for their
amended contentions in Section 16, below.
9. Class Actions
This is not a class action.
10. Related Cases
The following cases are related:
ï‚•ï€ Interwoven Inc. v. Vertical Computer Systems, Inc., Case No. 3:10-cv-04645-RS, filed
October 14, 2011 (the “Interwoven Action”); and
ï‚•ï€ Vertical Computer Systems Inc. v. Interwoven, Inc., et al., Case No. 2:10-cv-00490 (E.D.
Tex.), filed November 15, 2010 (the “Vertical Action”).
11. Relief
No supplement needed.
12. Settlement and ADR
The parties participated in court sponsored meditation with mediator Beth H. Parker on July
21, 2011, but failed to resolve the dispute. The parties are amenable to participating in additional
court sponsored mediation, including additional mediation with Ms. Parker. The parties propose
holding further settlement conferences, as indicated in the proposed scheduling below.
13. Consent to Magistrate Judge for All Purposes
No supplement needed.

7 JOINT CASE MANAGEMENT STATEMENT
CASE NO. 10-CV-4645-RS
14. Other References
No supplement needed.
15. Narrowing of Issues
No supplement needed.
16. Scheduling
The parties have not agreed on the dates for the remaining events in this case. In the
following table, they propose their schedules for the remaining events in accordance with the
Federal Rules of Civil Procedure, Local Rules and Patent Local Rules.
EVENT INTERWOVEN’S
PROPOSED DATES
VERTICAL’S
PROPOSED DATES
Status Conference May 24, 2012 May 24, 2012
Final Infringement Contentions August 3, 2012 August 17, 2012
Final Invalidity Contentions September 17, 2012 August 17, 2012
Patent holder to serve willfulness documents September 17, 2012 August 17, 2012
Alleged infringer to serve opinion of counsel October 1, 2012 August 17, 2012
First Mediation No later than 45 days after
May 24, 2012 Status
Conference (July 9, 2012)
By August 17, 2012
Close of Fact Discovery November 16, 2012 September 21, 2012
Opening Expert Reports February 15, 2012 October 19, 2012
Rebuttal Expert Reports April 15, 2012 November 16, 2012
Close of Expert Discovery June 15, 2013 December 21, 2012
Deadline for Filing Dispositive Motions August 2, 2013 December 28, 2012
Second Mediation 30 days after completion of
briefing on dispositive
motions
By December 28, 2012
Pretrial Conference September 20, 2013
(Subject to Court’s
schedule)
January 25, 2013
(Subject to Court's
schedule)
Trial (To be determined; subject
to Court’s schedule)
(To be determined;
subject to Court's
schedule)


8 JOINT CASE MANAGEMENT STATEMENT
CASE NO. 10-CV-4645-RS
17. Trial
The case will be tried to a jury. Interwoven expects trial will last 7 days. Vertical expects
trial will last 5 days.
18. Disclosure of Non-Party Interested Entities or Persons
Interwoven filed its “Certification of Interested Entities or Persons” on February 7, 2011.
Vertical filed its “Certification of Interested Entities or Persons” on May 12, 2011.
Dated: May 17, 2012
Respectfully submitted,
By: /s/ Bijal V. Vakil
Attorneys for Plaintiff
Interwoven, Inc.
Respectfully submitted,
By: /s/ Vasilios Dossas
Attorneys for Defendant
Vertical Computer Systems, Inc..
ATTESTATION CLAUSE
I, Bijal V. Vakil, hereby attest in accordance with General Order No. 45.X that Vasilios D.
Dossas, Counsel for Vertical Computer Systems, Inc. has provided his concurrence with the
electronic filing of the foregoing document entitled AMENDED SUPPLEMENTAL JOINT CASE
MANAGEMENT STATEMENT AND [PROPOSED] SCHEDULING ORDER.
Dated: May 17, 2012
WHITE & CASE LLP
By: /s/ Bijal V. Vakil
Bijal V. Vakil
ATTORNEYS FOR PLAINTIFF
INTERWOVEN, INC.
Case3:10-cv-04645-RS Document114 Filed05/17/12 Page8 of 9


9 JOINT CASE MANAGEMENT STATEMENT
CASE NO. 10-CV-4645-RS
Pursuant to the above Amended Supplemental Joint Case Management Statement,
IT IS SO ORDERED.
Dated: ___________________
RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE