Joint Motion to Enter Scheduling Order Page | 1

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS 

WACO DIVISION

WSOU INVESTMENTS, LLC D/B/A 

BRAZOS LICENSING AND 

DEVELOPMENT,

Plaintiff,

v. 

MICROSOFT CORPORATION,

Defendant.

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CIVIL ACTION 6:20-cv-00454-ADA

CIVIL ACTION 6:20-cv-00455-ADA

CIVIL ACTION 6:20-cv-00456-ADA

CIVIL ACTION 6:20-cv-00457-ADA

CIVIL ACTION 6:20-cv-00458-ADA

CIVIL ACTION 6:20-cv-00459-ADA

CIVIL ACTION 6:20-cv-00460-ADA

CIVIL ACTION 6:20-cv-00461-ADA

CIVIL ACTION 6:20-cv-00462-ADA

CIVIL ACTION 6:20-cv-00463-ADA

CIVIL ACTION 6:20-cv-00464-ADA

CIVIL ACTION 6:20-cv-00465-ADA

JOINT MOTION TO ENTER SCHEDULING ORDER

TO THE HONORABLE COURT:

Pursuant to the Court’s Order to meet and confer in advance of the Rule 16 Case 

Management Conference and the Court’s Order Governing Proceedings (“OGP”), the Parties have 

conferred on a proposed scheduling order and have exchanged competing scheduling orders. 

Plaintiff’s Proposed Scheduling Order is attached as Exhibit A. Defendant’s Proposed Scheduling 

Order is attached as Exhibit B. 

The parties agree on the dates for all deadlines from the October 2, 2020 deadline for 

motions to transfer to the April 16, 2021 deadline to add parties. In accordance with the Order 

Governing Proceedings, the parties have briefly set forth below their respective positions on items 

where they cannot agree.

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Plaintiff’s positions: 

Plaintiff’s Proposed Scheduling Order (Exhibit A) is identical for all 12 of the 

above-captioned cases. It adopts the Court’s Default Schedule. The parties agree to identical 

schedules for all 12 cases up until the deadline to serve final infringement and invalidity 

contentions, at which point Defendant breaks the cases into five groups and proposes different 

schedules for each of the groups. Defendant’s proposed scheduling order requests significant 

deviations from the Default Schedule that are prejudicial to Plaintiff. The Court should adopt 

Plaintiff’s proposal, which is based on the Default Schedule. See Far North Patents, LLC v. NXP 

USA, Inc., 1-20-cv-00397 (WDTX) (8/1/2020 text-only docket entry) (“After careful review, the 

Court adopts Plaintiff’s version given that it more closely tracks the Court’s default schedule and 

Defendants have not provided sufficient reasons to depart from that.”).

1. Deadline to amend pleadings

Defendant’s proposal reduces the time to amend pleadings by one month for “Groups 2, 3, 

5” and by almost two months for “Groups 1, 2.” This deviation from the Default Schedule 

prejudices Plaintiff and should be rejected.

2. Other deadlines based on Markman hearing date

Defendant proposes drastically different dates for different groups of cases even though 

they are all set for Markman on March 4 and 5, 2021. Defendant’s proposal to deviate from the 

Default Schedule is prejudicial to Plaintiff. For “Group 2” cases, for example, Defendant’s 

proposal cuts fact discovery off three months before the default deadline, allowing less than four 

months of fact discovery. This is highly prejudicial to Plaintiff, particularly so since Defendant 

already has access to its own documents concerning accused products, information Plaintiff cannot 

begin to seek until discovery opens two weeks after Markman. Defendant’s proposals for the 

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remaining deadlines in Group 2, including expert reports and expert discovery, are likewise 

curtailed by three months and are highly prejudicial to Plaintiff. Defendant’s proposals for Group 

1 are equally prejudicial. 

Staggering the case schedules at this early stage is arbitrary. Any consideration of 

staggering the case schedules should wait until after Markman and after there has been some 

discovery, as Markman and discovery will inform: (1) whether staggering is necessary or helpful; 

and if so (2) which cases require more or less time to prepare (including time for fact and expert 

discovery). At this point, there is no reason to assume (as Defendant’s proposal does) that 

discovery in “Group 2” can be concluded in less than four months but discovery in “Group 4” 

should last eleven months. There is also not reason to assume, as Defendant does, that “Group 4 

(‘902)” requires two months more discovery than “Group 5.” Defendant’s proposal to close 

discovery in Group 5 before Group 4 suggests Defendant may be seeking a strategic advantage 

based on discoverable information not yet produced. The Court should adopt its Default Schedule 

in each case, as proposed by Plaintiff.

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Defendant’s position:

The proposed schedules concern twelve different WSOU lawsuits filed in June. None 

involve related patents, although certain cases relate to overlapping Microsoft products or 

services. Based on that overlap, the parties agreed to five groups of cases through pre-trial, four 

Markman hearings (over two consecutive days) and parallel schedules through Markman. 

Each Microsoft case actually is a re-filing of allegations from a case filed earlier and then 

unilaterally dismissed by WSOU. WSOU has refused to explain the reason for the dismissal and 

refiling, but WSOU’s similar conduct in dozens of other contemporaneously filed cases suggests 

standing issues. For this reason, and to identify other parties who might control potentially key 

witnesses, such as named inventors, Microsoft seeks a date certain within 4 weeks for production 

of all, fully non-redacted, agreements related to the ownership or control of the asserted patents. 

WSOU has not agreed to provide that. 

WSOU also offers no suggestions to reduce the burden on the Court and the parties for 

managing the twelve Microsoft cases. Instead, WSOU proposes rote application of the Court’s 

default schedule following the Markman hearings, as if the Court will convene twelve trials 

simultaneously in early 2022 – without regard to WSOU’s other sixty-nine pending cases in this 

District and the remainder of the Court’s civil and criminal docket. 

In contrast to WSOU’s monolithic approach, Microsoft proposes that the parties continue 

managing the cases as logical groups, with corresponding discovery limits, leading to a 

succession of spaced trials to lessen the burden on the court, the parties and witnesses. Microsoft 

proposes that two sets of cases, which appear less complex, be tried more quickly than the 

Court’s default schedule. Correspondingly, Microsoft proposes the Court’s default schedule for 

a second set of cases (albeit with non-overlapping trial dates), while proposing slightly longer 

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schedules for the remaining two sets of cases that involve more complex facts and technology. 

Discovery for more complicated cases simply requires additional time, which also 

accommodates the realities of spacing these twelve cases for trial. Specifically:

• First two groups: Relate to discrete products (HoloLens; Xbox and Xbox Live service). If not 

dropped (Microsoft has explained to WSOU how it misunderstands the HoloLens product), 

these should be ready for trial sooner than the default schedule.

• Second tier of cases: Relate to different Skype services for 1) consumers and 2) business. 

Nonetheless, these seem about average complexity and thus Microsoft proposes basically the 

default schedule, but with non-overlapping trials and pre-trial.

• Last two groups: Each of these relate to complex customer implementations in larger, more 

complicated Microsoft network and other services (Azure; Windows Server). WSOU’s 

contentions are vague and detailed discovery will be necessary. As a practical matter, the 

number of likely witnesses and expert opinions will drive these cases beyond the others. 

The Court, parties and witnesses also will require some spacing between cases. Plaintiff’s 

schedule is not workable as the trials cannot occur simultaneously – even if these cases were the 

only cases on the Court’s docket.

As another practical proposal, Microsoft asks to dispense with production of preliminary 

sales information. There is no question that Microsoft is a well-established, ongoing concern, 

and WSOU will receive ample financial discovery during regular discovery. Requiring 

Microsoft to expend resources to provide early production of information that will be made 

obsolete just a few months later imposes undue costs.

The attached schedule attempts to show for all cases any deviation from the default, though 

Microsoft understands that the Court will enter schedules specific to each case.

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Date: October 2, 2020 Respectfully submitted,

By: /s/ James L. Etheridge

James L. Etheridge 

Texas Bar No. 24059147 

Ryan S. Loveless 

Texas Bar No. 24036997 

Brett A. Mangrum 

Texas Bar No. 24065671 

Travis L. Richins 

Texas Bar No. 24061296 

Jeff Huang 

Etheridge Law Group, PLLC 

2600 E. Southlake Blvd., Suite 120 / 324 

Southlake, TX 76092 

Tel.: (817) 470-7249 

Fax: (817) 887-5950 

Jim@EtheridgeLaw.com 

Ryan@EtheridgeLaw.com 

Brett@EtheridgeLaw.com 

Travis@EtheridgeLaw.com 

Jeff@EtheridgeLaw.com 

Mark D. Siegmund

State Bar No. 24117055

mark@waltfairpllc.com

Law Firm of Walt, Fair PLLC.

1508 North Valley Mills Drive 

Waco, Texas 76710

Telephone: (254) 772-6400

Facsimile: (254) 772-6432

Counsel for Plaintiff WSOU Investments, LLC

/s/ Barry K. Shelton

Barry K. Shelton 

Texas State Bar No. 24055029

SHELTON COBURN LLP

311 RR 620 S, Suite 205

Austin, TX 78734

Telephone: (512) 263-2165

Fax: (512) 263-2166

bshelton@sheltoncoburn.com

Of Counsel

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Michael J. Bettinger

Irene Yang

SIDLEY AUSTIN LLP

555 California St., Suite 2000

San Francisco, CA 94104

Telephone: (415) 772-1200

Fax: (415) 772-7400

mbettinger@sidley.com 

irene.yang@sidley.com 

Richard A. Cederoth

John W. McBride

SIDLEY AUSTIN LLP

1 South Dearborn St.

Chicago, IL 60603

Telephone: (312) 853-7000

Fax: (312) 853-7036

rcederoth@sidley.com 

jwmcbride@sidley.com 

Attorneys for Defendant Microsoft Corporation

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