Plaintiffs also propose that the briefing schedule be deferred until the reassignment of this matter from Chief Judge Ware so these matters can be taken up by the assignee judge who would preside over any subsequent hearings or trial. In the alternative, if the Court is inclined to enter a schedule at this time, Plaintiffs propose that each side submit its expert declarations by July 20, 2012 addressing the two issues in the Order; that depositions of technical experts be completed by August 3, 2012; and that opening and opposing briefs be filed simultaneously by Plaintiffs and TPL by August 10 and August 17, 2012, respectively.

TPL’s proposal set forth below is simply to have the parties submit additional briefs with attached declarations, and no prior exchange of declarations and no depositions to narrow the issues. Plaintiffs respectfully submit that this proposal will likely result in an evidentiary record substantially the same as the one the Court has before it now, which led the Court to request further briefing. Simply directing the parties to submit supplemental briefs with competing expert declarations, without the benefit of a prior exchange and depositions, may leave the Court with a substantially impaired ability to resolve potential disputes on complex technical issues. For example, with respect to the “ring oscillator” term, the experts may take different positions on whether or not the voltage-controlled oscillator disclosed in Talbot is a ring oscillator. Allowing each party to depose its opponent’s declarants will provide the Court with an evidentiary basis to resolve the remaining disputes.

TPL notes below that the parties have already had discovery on Talbot. But Plaintiffs never had a chance to depose TPL’s expert specifically on his actual declarations. TPL also has not indicated if it will rely on the same declarations or even the same expert. In addition, TPL seems to be raising new arguments. For example, at the hearing, TPL’s counsel appeared to suggest a new argument, not reflected in the existing briefing or declarations by TPL, that the Schmitt trigger in Figure 3 of Talbot somehow means there are not an odd number of inversions in a loop. Hearing Tr. At 62:24-63:1 (“Talbot didn't have a ring oscillator in the sense that it did not have a multiple number of odd inverters in a loop. It had -- it relied on something called a Schmidt[sic] trigger . . .”). A deposition is needed to explore at least these new arguments.

Defendants’ Position:
Defendants do not believe that further depositions on these narrow points are necessary. The parties have already submitted expert declarations and deposed the experts on the first issue identified by the Court (Talbot). There is nothing “new” about Defendants’ position; it was set out in declarations accompanying both the claim construction briefing (see Ex. A at ¶¶ 3-9) and in opposition to HTC’s motion for summary judgment (see Ex. B at ¶¶ 14-20). Defendants believe that Plaintiffs’ desire for discovery demonstrates that there was no clear and unambiguous disclaimer—if further extrinsic evidence is required then, by definition, the alleged disclaimer is not “clear and unambiguous.”
As for the second issue (Boufarah), the Court asked for “further briefing,” not additional evidence.

Defendants agree to the proposed briefing schedule.
II. CONSENT TO MAGISTRATE JUDGE GREWAL
At this time, not all parties have agreed to consent to Magistrate Judge Grewal for further proceedings. Acer and TPL are agreeable to Magistrate Judge Grewal. Barco and HTC have not yet made a final determination but expect to have a decision soon.

Very glad Judge Ware is likely gone from the case. His requests covering the Ring Oscillator were curious to say the least, deeply suspicious. Afterall, the cost to business worldwide may reach a 1B$$ or more if TPL is successful in their licensing efforts with a favorable overall Markman ruling. The Ring is Key.

Big Business may have leaned on him and has a vested interest in this case. He's human and vulnerable. It is quite possible his next job may very well be working in the IP field for a Law Firm.

Looks like we are likely stuck with the same Technical Special Advisors, too. That may or may not be a good thing. Expediency - Yes, Bias - ??...Still, TPL has given their blessing, so in their trust we will proceed forward.

Virt