Opinion
Case No. 5:10-cv-03428-LHK
03-15-2012
BROCADE COMMUNICATIONS SYSTEMS, INC., a Delaware corporation; and FOUNDRY NETWORKS, LLC, a Delaware limited liability company, Plaintiffs, v. A10 NETWORKS, INC., LEE CHEN, RAJKUMAR JALAN, RON SZETO, LIANG HAN, STEVE HWANG, and DAVID CHEUNG, Defendants. A10 NETWORKS, INC., a California corporation, Counterclaimant, v. BROCADE COMMUNICATIONS SYSTEMS, INC., a Delaware corporation; and FOUNDRY NETWORKS, LLC, a Delaware limited liability company, Counterclaim-Defendants.
Scott R. Mosko (State Bar No. 106070) Scott A. Herbst (State Bar No. 226739) FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP Attorneys for Defendant and Counterclaimant A10 NETWORKS, INC. and Defendants LEE CHEN, RAJKUMAR JALAN, RON SZETO, and STEVE HWANG (Additional counsel listed on signature page.)
Scott R. Mosko (State Bar No. 106070)
Scott A. Herbst (State Bar No. 226739)
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, LLP
Attorneys for Defendant and Counterclaimant
A10 NETWORKS, INC. and Defendants LEE CHEN,
RAJKUMAR JALAN, RON SZETO, and STEVE HWANG
(Additional counsel listed on signature page.)
A10 NETWORKS, INC.'S ADMINISTRATIVE MOTION FOR LEAVE TO FILE "NOTICE
OF ACTIVITY BEFORE THE PATENT OFFICE FROM THE ONGOING INTER PARTES
AND EX PARTE REEXAMINATIONS OF THE ASSERTED BROCADE PATENTS" AND [PROPOSED] ORDER
Judge: Honorable Lucy H. Koh
ADMINISTRATIVE MOTION SEEKING LEAVE TO FILE NOTICE OF PATENT
OFFICE ACTIVITY (REEXAMINATIONS OF ALL ASSERTED BROCADE PATENTS)
Pursuant to at least Civil L.R. 7-11(a), A10 Networks, Inc. ("A10") respectfully seeks leave to file a "Notice of Activity Before the Patent Office from the Ongoing Inter Partes and Ex Parte Reexaminations of the Asserted Brocade Patents" ("Notice"), which contains new information relevant to the Court's claim constructions and to A10's Renewed Motion to Stay ("RMTS"), argument on which is set for this Thursday, March 15. The Notice that A10 requests permission to file is attached hereto as Exhibit A.
By the time that briefing on A10's RMTS concluded (December 14, 2011), the U.S. Patent & Trademark Office ("Patent Office") had granted all thirteen ex parte reexam requests. The Patent Office had also just begun acting on the inter partes reexam requests, first granting inter partes reexamination for U.S. Patent Number 7,574,508 ("the '508 Patent"). In the three months that have since passed, the Patent Office has granted the remaining twelve inter partes reexam requests, and has issued Office Actions in all of them. Moreover, Brocade has been responding to the Office Actions, and taking positions on the meaning of the claim language.
The Notice will allow A10 to bring to the Court's attention statements that Brocade has made to the Patent Office to try to salvage its claims. Those statements are not consistent with the Court's construction of certain terms, which constructions Brocade has not provided to the Patent Office. The ongoing reexaminations are significant because of the effect that Brocade's statements have on the claim constructions: Brocade's statements alter the intrinsic evidence that this Court should consider in arriving at the legally-correct claim construction, and Brocade will continue to change the intrinsic evidence until the reexamination proceedings conclude, leaving the disputed claim terms and their legally-correct interpretation in a state of flux. See, e.g., Krippelz v. Ford Motor Co., 667 F.3d 1261, 1266-67 (Fed. Cir. 2012) (affirming a claim construction that included limitations not found in the specification or the original prosecution history, and finding that the patentee's arguments during reexamination created "limitations [that] became part of the properly-construed claims").
A10 respectfully suggests that this Court should consider the information in the Notice, and the attendant ramifications of continuing the patent side of this litigation on a parallel track with the reexaminations, before deciding A10's Renewed Motion to Stay.
The supporting Declaration of Scott A. Herbst filed herewith confirms that A10 advised Brocade's counsel of A10's intention to seek leave to file the Notice. At the time this motion was filed, Brocade's counsel had not indicated a willingness to stipulate to the filing of the Notice.
Respectfully submitted,
FINNEGAN, HENDERSON, FARABOW
GARRETT & DUNNER, L.L.P.
By:__________________
Scott A. Herbst
Attorneys for Defendant and Counterclaimant
A10 NETWORKS, INC. and Defendants LEE
CHEN, RAJKUMAR JALAN, RON SZETO,
LIANG HAN, and STEVE HWANG
Additional Counsel:
E. Robert Yoches (Admitted pro hac vice)
Smith R. Brittingham IV (Admitted pro hac vice)
John F. Hornick (Admitted pro hac vice)
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, L.L.P.
Lionel M. Lavenue (Admitted pro hac vice)、
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, L.L.P.
[PROPOSED] ORDER GRANTING A10 MOTION FOR LEAVE TO FILE ITS "NOTICE
OF ACTIVITY BEFORE THE PATENT OFFICE FROM THE ONGOING INTER PARTES
AND EX PARTE REEXAMINATIONS OF THE ASSERTED BROCADE PATENTS"
A10 Networks, Inc. seeks leave to file the "Notice of Activity Before the Patent Office from the Ongoing Inter Partes and Ex Parte Reexaminations of the Asserted Brocade Patents," attached as Exhibit A to A10's Administrative Motion.
Upon good cause shown, IT IS HEREBY ORDERED that Exhibit A to 10's Administrative Motion shall now be and is hereby considered filed in this matter.
__________________
Lucy H. Koh
United States District Judge
See also e.g., Civil L.R. 7-3(d).