Undersigned Defendants, move the Court for a forthwith Status Conference with the Court and to schedule a Rule 16(b) Scheduling Conference.

The Court recognized at the first Status Conference that "[t]his case, because of the number of defendants and because of their wide geographic dispersal, argues for a creative approach adopted by counsel to streamline the litigation." (Exh. A, Transcript of 117110 Status Conference, at 21:11-14 (emphasis added)) Accordingly, the Court urged counsel to consider creative scheduling solutions and "to think sequentially how we might address the Markman issue ... without extensive discovery." (Id. at 22:8-10 (emphasis added)) Perhaps anticipating the problems that could arise with so many parties in one ease, the Court told counsel "I'm open at any point to having another Rule 16 hearing. You may request one at any time." (Id. at 24:8-9.) Defendants respectfully take the Court up on its offer and request the Court to conduct another Rule 16 hearing on the earliest available date.

Despite the difficulties that necessarily arise when trying to obtain agreement among nearly 30 Defendants, many of whom are competitors, as well as Plaintiffs recent addition to this case of yet another patent, as part of its proposed Amended Complaint, Defendants and their counsel have worked diligently to craft an efficient schedule that takes into account the Court's desire to address claim construction issues first -- before the parties undertake expensive discovery and, particularly, c-discovery. Moreover, Defendants' proposed schedule adopts the Court's suggestion that "there is nothing that prevents counsel from conveying to each other what the positions of their clients wi11 be short of filing the answer." (Exh. A, at 21:20-22.) Defendants sent their proposed schedule to Plaintiff's counsel on February 17, 2010. (Exh. B, e-mail, and a letter setting forth Defendants' proposed schedule, Exh. C hereto.)

Plaintiff's counsel responded on February 18, 2010, with a completely different proposed schedule--one that does "not include separate Markman deadlines because [Plainttff] doles] not think they are necessary, as jPlaintiff s counsel] previewed at the prior Status Conferences." (Exh. D, e-mail (emphasis added); Exh. E, Plaintiffs proposed schedule.) Plaintiff's counsel stated in a later e-mail on February 18, 2010, that they "intend to serve some initial discovery next week ..." preferably Monday, February 22, 2010. (Exh. F, e-mail.) Plaintiff made no effort to incorporate any part of Defendants' proposed schedule into Plaintiff s proposal. Instead, Plaintiff summarily rejected Defendants' proposed claim construction schedule, arguing that "exchanging claim terms and meeting and conferring on claim terms before most of the Defendants have even answered" would not be appropriate. (Exh. D; but cf Exh. A, at 21:20-22 (suggesting that the parties consider exchanging positions on substantive issues prior to answering the complaint))

Plaintiff put Defendants' proposal aside in lieu of a schedule more to Plaintiff's liking, and argued that "it will be most efficient for the Defendants to review [Plaintiffs] proposed scheduling order and provide redlined comments." (Exh. D.) Perhaps that would have been a reasonable proposal, had it been made earlier. But Plaintiffs proposal arrived after the Defendants, working as a gaup, spent significant time and effort developing a proposal acceptable to all of them.

Plaintiffs proposed schedule ignores the Court's ` urg[ing that the parties] put aside the old cookie-cutter approach to litigation in this case and to consider a number of different techniques that can be used to speed determination and to sharpen issues." (Exh. A, at 21:16-19.) Indeed, Plaintiffs proposed schedule is exactly the type of cookie-cutter schedule

that is wrought with inefficiency since it allows full blown discovery from the outset without any specific procedures for claim construction. Notably, Plaintiffs proposed schedule (i) omits any reference to a Markman hearing and related disclosures, (ii) allows amendment of pleadings and addition of parties over a seven month period, and (iii) allows for 45 hours of depositions for each of the 29 Defendants (i.e., up to 1,305 hours of depositions), seven hours of deposition for each of the prosecuting attorneys (which is to be split among Defendants, allowing them 15 minutes each), and up to 7 hours of deposition time for each of the five inventors (i.e., again allowing about 15 minutes for each Defendant). Schedules such as the one proposed by Plaintiff typically do not achieve the efficiencies that the Court, and the Defendants, hope to achieve in this case.

Defendants' proposal, which would allow the parties to address claim construction issues first "without expensive discovery," is consistent with the direction given by this Court, while Plaintiff's proposal Ibr a "cookie-cutter--full-steam-ahead" discovery schedule is not. Therefore, Defendants respectfully ask the Court to schedule another Status Conference so that it can instruct the parties how the case can be structured to minimize expense and delay. Defendants ask that this next Status Conference be held at the earliest available date so that the parties do not continue to incur potentially needless expense.

For the reasons discussed above, Defendants also believe that the Rule 16(b) Scheduling Conference should be scheduled after the requested Status Conference. Relying on Rule 16(b)(2), Plaintiff believes that the Rule 26(f) conference must take place by Monday, February 22, 2010. (Exh. C.) However, D.C.COLO.LCivR 16.1 provides that a scheduling conference will be convened by a judicial officer, and there is no current setting for a scheduling

conference. Instead, following the initial "Status Conference," Magistrate Judge Watanabe set a further "Status Conference" for April 1, and did not suggest that discovery would open before the scheduled Status Conference, let alone before the setting of a formal scheduling conference. Moreover, Plaintiff's complaint is just now being amended to add claims of infringement of a different patent and new claims of the originally pleaded patent, and several named Defendants have not yet been served. Thus, Defendants request that the Court determine an appropriate date for a full scale Rule 16(b) Scheduling Conference following the requested Status Conference with the Court.

Certificate of Compliance

with D.C.COLO.LCivR. 7.1(A)

Counsel for Defendants have exchanged a number of emails with Plaintiff's counsel, in an effort to confer in good faith regarding the relief requested in this Motion and two of the Defendants' counsel have spoken directly with Plaintiffs counsel. Although there has been no agreement on scheduling, Plaintiff's position was stated in its last email and confirmed in the telephone call:

"Ulf Defendants choose to seek a status conference, we will not oppose that request, but we prefer that the conference be requested for Thursday, as opposed to Monday, so that Woody can participate. Further, we believe that the appropriate next step is for the Court to set a scheduling conference, not a status conference, and therefore, we do not intend to join in your request. We also reserve the right to file our own statement responding to (but not opposing) any request for a status conference, as necessary."