New Pacer--PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION FOR
RELIEF FROM FIRST PATENT
SCHEDULING ORDER


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
ACER, INC., ACER AMERICA
CORPORATION and GATEWAY, INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES
LIMITED, PATRIOT SCIENTIFIC
CORPORATION, and ALLIACENSE
LIMITED,
Defendants.
HTC CORPORATION and HTC AMERICA,
INC.,
Plaintiffs,
v.
TECHNOLOGY PROPERTIES
LIMITED, PATRIOT SCIENTIFIC
CORPORATION and ALLIACENSE
LIMITED,
Defendants.
BARCO, N.V., a Belgian corporation,
Plaintiff,
v.
TECHNOLOGY PROPERTIES LTD.,
PATRIOT SCIENTIFIC CORP., and
ALLIACENSE LTD.,
Defendants.
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION FOR
RELIEF FROM FIRST PATENT
SCHEDULING ORDER
Dept: Courtroom 9, 19th Floor
Judge: Hon. James Ware

The declaratory relief Plaintiffs in all three of the above-captioned actions oppose the
motion by Technology Properties Ltd. (“TPL”), Alliacense Ltd., and Patriot Scientific
Corporation (collectively, “Defendants”) to delay the claim construction schedule recently agreed
to by all the parties. The unexplained substitution of counsel for two defendants, TPL and
Alliacense1, after being represented in these actions by the Farella firm for more than three and a
half years, does not justify delaying the scheduled claim construction proceedings. As this Court
will recall, the parties appeared for the Further Case Management Conference on October 3,
2011. During that CMC, the parties discussed and the Court established the dates for the claim
construction hearing and tutorial. TPL did not object to these dates during the CMC, nor did it
inform the Court or the parties that it was planning to substitute counsel.
TPL has no basis to claim that it will be unfairly prejudiced by the case schedule it agreed
to just six weeks ago. The fact is that substantially all of the written filings required in advance of
the claim construction hearing have already been completed. A comprehensive Joint Claim
Construction Statement was filed more than a year ago on October 29, 2010 (Dkt. No. 203).2
Three expert witnesses on claim construction were deposed. With respect to the Barco case, the
Joint Claim Construction Statement identified the ten most significant terms for construction3, on
which the claim construction briefing was focused. Claim construction briefs were filed and all
briefing was completed by March 2011. (Dkt. Nos. 212, 218, 227, 233.)
Since the parties’ competing positions with respect to claim construction have already
been briefed, the only significant task left for TPL’s new counsel is to prepare for a claim
1 The other co-owner of the patents-in-suit, defendant Patriot Scientific Corporation (“Patriot”),
has been represented by the same counsel since this dispute began in 2008 and is not being
substituted.
2 All references to “(Dkt No.)” refer to numbered docket entries in the Acer action (08-CV-
00877). All of the documents referenced in the text were simultaneously filed in the HTC and
Barco actions.
3 Only the Barco action is subject to the current Local Patent Rules requiring identification of the
top 10 claim terms for construction. The Acer and HTC actions were filed before those rules
came into effect.
construction hearing that is more than two months away.4 Indeed, Plaintiffs had proposed that no
new briefing be done at all, and remain willing to argue the claim constructions based on the
existing briefs.
All that is needed to conform the JCCS to the Court’s scheduling order is to decide which
terms are to be argued.5 The parties have a substantial head start on narrowing the claim terms at
issue. Judge Fogel had already asked the parties to reduce the number of disputed terms to about
10, the parties have already agreed in part on certain terms to be argued, and have previously
submitted a Joint Statement Requesting Order on Claim Terms to Be Construed (Docket No. 282)
setting out the remaining disputes and seeking the court’s guidance.
Once the terms to be argued are decided upon, conforming the briefing is largely a matter
of deleting sections devoted to terms that do not make the final list. While some redrafting for
readability or to correct ministerial errors might be done,6 no party should be changing its
substantive position, citing new evidence or citing new law. Plaintiffs do not understand the
scheduling order to be an invitation or excuse to start claim construction all over again; positions
not already expressed should be considered waived.
TPL makes no attempt to explain why it cannot comply with the existing schedule given
the substantial amount of work that has already been done and the more than two months it
already has to prepare for the claim construction hearing. None of the upcoming dates prior to
the claim construction hearing will require TPL’s new counsel to do any new substantive work,
so those dates do not justify a delay in these proceedings -- let alone the 75-day additional
4 A Supplemental Joint Claim Construction Statement was filed on August 23, 2011, after the
completion of claim construction briefing. (Dkt. No. 290.) The Supplemental Claim
Construction Statement included certain additional terms that arose as a result of the
reexaminations of the patents-in-suit. Because Plaintiffs do not seek to construe those additional
terms at this time, no additional briefing is needed for those terms.
5 Plaintiffs recognize that the Court’s scheduling order limits the total claim terms to 10, but the
parties have disputed how to count terms. The Court indicated at the CMC that a few additional
terms might be acceptable and that the Court would consider another phase of claim construction
if the terms argued do not resolve all material issues.
6 Judge Fogel permitted a surreply that would be incorporated into revised briefs.
extension requested.7
TPL’s suggestion that the existing schedule will present a “tactical advantage” to
Plaintiffs is wholly without merit. TPL must accept the consequences of its decision to change
counsel at this juncture. By deciding not to explain the change, TPL cannot point to any reason
why this change could not have been made sooner or made later to allow new counsel whatever
time was deemed necessary to accept the representation on the current schedule.
Indeed, the requested delay has the potential to prejudice Plaintiffs. Discovery is ongoing,
with its attendant costs. This delay will delay settlement discussions informed by the
Court’s claim constructions, creating an opportunity for TPL to subject Plaintiffs to expensive
discovery requests during the delay. Plaintiffs brought this action to establish that their products
do not infringe any valid claim of TPL’s patents, and this delay obviously delays ultimate
resolution of that issue.
Plaintiffs therefore respectfully request that TPL’s motion be denied.
7 TPL speciously argues that a delay of these proceedings is justified in part by the fact that the
parties had produced millions of pages of documents. (Otteson Decl. ¶ 5.) As the Court is fully
aware, the construction of the patents-in-suit is based on the intrinsic record, so these documents
have no relevance to the claim construction issues. This is confirmed by the existing claim
construction briefing, which does not rely on any extrinsic documents produced by the parties.

CONSOLIDATED JOINT CLAIM CONSTRUCTION
AND PREHEARING STATEMENT
4
Dated: November 17, 2011. K&L GATES LLP
By: /s/ Harold Davis /s/
Timothy P. Walker, Esq.
Harold H. Davis, Jr., Esq.
Jas Dhillon, Esq.
Jeffrey M. Ratioff
K&L Gates LLP
Four Embarcadero Center, Suite 1200
San Francisco, CA 94111
Attorneys for Acer, Inc., Acer America
Corp. and Gateway, Inc.
Dated: November 17, 2011 COOLEY LLP
By: /s/ Mark Weinstein /s/
Heidi L. Keefe, Esq.
Mark R. Weinstein, Esq.
Kyle D. Chen, Esq.
Cooley LLP
3000 El Camino Real
Five Palo Alto Square, 4th Floor
Palo Alto, California 94306
Attorneys for HTC Corporation and HTC
America, Inc.

Dated: November 17, 2011 BAKER & MCKENZIE LLP
By:/s/ Ed Runyan /s/
Edward K. Runyan, Esq.
Baker & McKenzie
130 East Randolph Drive
Chicago, IL 60601
Attorneys for Barco, N.V.