JOINT MOTION TO ADJUST THE SUMMARY JUDGMENT DEADLINE IN LIGHT OF THE COURT’S ORDER VACATING THE MARKMAN ORDER
Not intending to prolong the agony, but instead to ensure the efficient adjudication of this dispute, the parties jointly request that the Court adjust the dispositive motion deadline, without affecting the trial date. The parties have conferred in good faith, and believe that their request is unavoidable in light of the Court’s April 2, 2014 Order (Dkt. 300) vacating portions of Magistrate Judge Primomo’s Markman order.
Claim Construction offered 25 terms. The parties agreed to 7 and partially agreed to 4. There remained 18 in dispute. At the Markman the parties only presented arguments on 8 of the 18. The Judge then got into the mix and now the Plaintiff (USAA) says the Judge erred. The Judge then said.....
"Therefore, the Court will vacate that portion of the Magistrate Judge's Order which declines to construe the disputed terms. The Court will consider the briefs of the parties and issue a separate order construing the remaining terms at issue. No need for a supplemental Markman hearing is indicated at this time"
IMO, the Judge steps in and will issue his own order for construction...... JMO
Summary Judgment motions are to be briefed by about, I think, June-ish. The parties asked for more time to brief due to the District Judge stepping in to rule on certain of the claim construction issues, which he has not ruled on yet. Both parties indicate that they will be filing summary judgment motions, and for both motions the only issue is whether USAA infringed on Mitek's patents. Once the Judge rules on the motions for summary judgment, I believe this matter will settle. I could be wrong and it could proceed to trial, but while there are collateral issues involved, the main issue is the infringement by USAA. Once the remaining claims constructions are ruled on by the Judge, and eventually rules on the parties' sj motions, I think it will settle. The supplemental Markman ruling is very important therefore, I think, both because both parties are waiting on this ruling before filing their respective motions for sj and this will determine how the parties are able to make their arguments. BTW, disclosure, I am a criminal defense/civil rights atty and know nothing about patent law.
Accordingly, the parties request that the Court amend the schedule as follows:
1. Opening summary judgment briefs are due May 14, 2014. However, if the supplemental Markman order issues after April 30, 2014, opening summary judgment briefs are due 14 days from the issuance thereof.
2. Responsive summary judgment briefs are due 14 days after opening briefs.
3. Reply summary judgment briefs are due 7 days after responsive summary
The parties’ joint motion to reschedule dispositive motion deadlines is not made for purposes of delay, but so that justice may be done.
WHEREFORE, the parties jointly request that the Court (1) vacate the dispositive motion deadlines currently in place, and (2) issue an order incorporating the proposed deadlines set forth herein.