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DataTern, Inc. v. Microstrategy, Inc.

United States District Court, D. Massachusetts

March 27, 2017

DATATERN, INC., Plaintiff,
v.
MICROSTRATEGY, INC., et al., Defendants.

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION TO STRIKE

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         This is a patent dispute. Plaintiff DataTern, Inc. brought this action against defendant MicroStrategy, Inc. and a number of its customers, asserting a claim of patent infringement. In August 2016-almost five years after this action commenced, and 31 days prior to the Markman hearing-MicroStrategy amended its preliminary invalidity and non-infringement contentions. DataTern has moved to strike the amended contentions on the ground that the filing was untimely. It has also moved to strike certain preliminary indefiniteness contentions on the ground that MicroStrategy has waived its rights to assert those arguments by failing to raise them prior to briefing on claim construction. For the following reasons, the motion to strike will be denied.

         I. Background

         DataTern is the owner of U.S. Patent No. 6, 101, 502 (“'502 patent”). The '502 patent recites “[a] method for interfacing an object oriented software application with a relational database.” ('502 patent claim 1).

         On November 7, 2011, DataTern filed a complaint against Blazent, Inc., a customer of MicroStrategy, alleging infringement of the '502 patent. Shortly thereafter, it filed similar complaints against eight other MicroStrategy customers and MicroStrategy itself. On February 24, 2012, this Court (Stearns, J.) entered an order consolidating the latter nine cases and designating case No. 11-cv-12220, that against MicroStrategy, as the lead case. At that time, the case with Blazent as the defendant was not yet consolidated.

         In March 2012, DataTern and MicroStrategy filed a Joint Statement proposing a scheduling timetable in preparation for an upcoming scheduling conference (the “2012 Joint Statement”). (No. 11-cv-12220, Docket No. 27 at 8-9). In the 2012 Joint Statement, the parties proposed that preliminary infringement, invalidity, and non-infringement contentions “may be amended and supplemented up to 30 days before the date of the Markman hearing.” (Id.). On March 21, 2012, the Court (Stearns, J.) entered a scheduling order that set a deadline for filing initial preliminary infringement, invalidity, and non-infringement contentions and adopting the 2012 Joint Statement proposed deadlines occurring after the Markman hearing. (Order, No. 11-cv-12220-FDS (Mar. 21, 2012)). Judge Stearns did not, however, did not set a deadline for amending preliminary infringement, invalidity, and non-infringement contentions. (Id.).

         On April 26, 2012, DataTern filed its initial preliminary infringement contentions. (No. 11-cv-12220, Docket No. 41). On July 31, 2012, the case was reassigned to the undersigned judge.

         After the Court granted multiple requests to extend the time for filing, MicroStrategy filed its initial preliminary invalidity and non-infringement contentions on August 10, 2012. (No. 11-cv-12220-FDS, Docket No. 81).

         In October 2012, the Court stayed the case pending rulings in two cases involving the '502 patent in the District Court for the Southern District of New York.

         In January 2013, the Court granted a motion to consolidate the cases before it, including the case against Blazent. At that point, case number 11-cv-11970 became the lead case.

         In February 2013, following a ruling by the New York court, the Court entered summary judgment of non-infringement. (Docket No. 38). In December 2014, the Federal Circuit reversed that judgment and remanded the matter to this Court. (DataTern, Inc. v. Epicor Software Corp., 599 F.App'x 948, 954-55 (Fed. Cir. 2014)). Upon remand, MicroStrategy filed two motions for summary judgment. (Docket No. 49; 53). The Court denied both motions. (Docket No. 101).

         To address the changed posture of the case, the parties filed a Joint Proposed Case Management Schedule on April 7, 2016 (the “2016 Joint Statement”) (Docket No. 114). The 2016 Joint Statement proposed that the “[d]eadline for amending infringement and invalidity Contentions” would be “30 days after the Court issues claim construction decision.” (Id. at 2).

         On April 8, 2016, a scheduling conference was held at which the Court ordered new scheduling deadlines (“2016 Scheduling Order”), which superseded the 2012 Scheduling Order. (Docket No. 115). At that conference, the Court adopted the 2016 Joint Statement up to the Markman hearing “and not beyond.” (Tr. of Scheduling Conference at 4-1, Docket No. 173). The Court set the case for a Markman hearing on September 26, 2016.

         The 2016 Scheduling Order thus did not provide a deadline for amending preliminary contentions. It was the Court's intention, as stated at the conference, ...


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