ACER, INC., ACER AMERICA
CORPORATION AND GATEWAY, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES LIMITED, PATRIOT SCIENTIFIC CORPORATION,
and ALLIACENSE LIMITED,
Defendants.

SECOND SUPPLEMENTAL JOINT CASE MANAGEMENT CONFERENCE STATEMENT

Date: November 13, 2009

Defendants, as demonstrated by the reexamination experience of the ’336 Patent, because none of the claims survived the reexamination in their original form, with all of them either significantly amended or completely cancelled. In particular, the Examiner has added limitations to the now undeniably narrower claims to specifically overcome prior art that was not overcome before. Among the ’336 Patent’s original claims 1 through 10, all independent claims 1, 6, 9 and 10 have been amended (hence so have been their dependent claims 2 and 7), while claims 3, 4, 5 and 8 have been cancelled. Because all the (remaining) asserted claims 1, 6, 7, 9 and 10 of the ’336 Patent have been amended, intervening rights apply and Defendants will not be allowed to accuse Acer, HTC or any other parties or non-parties of infringing the ’336 Patent for any product sold prior to the issuance of the upcoming Reexamination Certificate. 35 U.S.C. 252; Seattle Box Co. v. Industrial Crat. & Pack. Inc., 731 F.2d 818 (Fed. Cir. 1984). Hence, all products identified in Defendants’ Patent Local Rule 3-1 disclosures are free form any claim of infringement of the ’336 Patent. The ’749, ’890 and ’148 reexaminations will likely have a similar result. Additionally, the patentee’s actions to date in the reexaminations have provided further intrinsic evidence that will inform the Court’s claim construction on the amended claims of the ’336 Patent and the other asserted patents should Defendants assert them after the Reexamination Certificate issues. All of the patents share a common specification and recite several identical claim elements that will need to be construed (e.g., the term “ring oscillator” is recited in asserted claims of all four of the patents-in-suit). It is therefore likely that proceedings in the reexaminations will further clarify and inform the Court’s claim construction.