UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

COBBLESTONE WIRELESS LLC,

Plaintiff,

V.

CISCO SYSTEMS, INC., 

Defendant.

Case No. 2:23-cv-00454-JRG-RSP 

LEAD CASE

JURY TRIAL DEMANDED

COBBLESTONE WIRELESS LLC,

Plaintiff,

V.

HEWLETT PACKARD ENTERPRISE

COMPANY and ARUBA NETWORKS, LLC, 

Defendant.

Case No. 2:23-cv-00457-JRG-RSP 

JURY TRIAL DEMANDED

PLAINTIFF COBBLESTONE WIRELESS LLC’S SUR-REPLY IN OPPOSITION

TO DEFENDANTS’ MOTION TO STAY PENDING INTER PARTES

REVIEW AND EX PARTE REEXAMINATION

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Defendants’ arguments on reply are unavailing and do not support that a stay is warranted 

here, where its IPR petition has not been instituted.

Simplification of the Issues. Defendants’ pending IPR petition still has not been instituted, 

and this alone supports denial of their motion under this District’s “established practice” of 

denying pre-institution motions to stay as “inherently premature.” Viavi Sols. Inc. v. Zhejiang 

Crystal-Optech Co., No. 2:21-CV-00378-JRG, 2022 WL 16856099, at *5 (E.D. Tex. Nov. 10, 

2022). While it may be true that simplification is decided on a case-by-case basis, Defendants have 

not identified any special circumstances that warrant an exception to this Court’s practice. 

First, Defendants point to the fact that there are related cases that are on a slightly earlier 

schedule than this case. Reply at 2. But Defendants still have not identified any authority to support 

that related district court cases are relevant under this factor. And even if relevant, Defendants fail 

to explain how staying this case in favor of the other district court cases will simplify the issues 

here. Defendants have not specifically identified any overlapping issues, and have not agreed to 

be bound by the Court’s findings in the Samsung and carrier cases. A stay will not simplify the 

issues at all. And to the extent there are any overlapping issues, the Court will still have the benefit 

of its decisions from the earlier-filed cases, regardless of a stay.

Defendants next argue that their pending IPR petition, as well as the pending Samsung IPR 

and the newly filed Carrier IPR (IPR2024-00946) challenge all asserted claims. Reply at 2. This 

certainly is not exceptional. Nor does it somehow change the speculative nature of Defendants’ 

premature request. This Court frequently denies pre-institution motions to stay even where all 

asserted claims are challenged. See Viavi Sols., 2022 WL 16856099, at *5. Defendants also ignore 

that they have not agreed to be bound by statutory estoppel with respect to the Samsung and Carrier 

IPRs. Thus, there will be no simplification even if those IPRs are instituted. Defendants are 

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essentially advocating for a per se rule that the mere existence of pending IPR petitions justifies a 

stay, which is decidedly not the law.

As to the reexam, Defendants still have not specifically identified a single issue that may 

be affected by the reexam, and instead continue to make vague assertions regarding the statistical 

likelihood of cancellation or amendment. This is insufficient. See Longhorn HD LLC. v. NetScout 

Sys., Inc., No. 2:20-CV-00349-JRG, 2022 WL 71652, at *3 (E.D. Tex. Jan. 6, 2022). Defendants 

also argue that the “Decision Granting Ex Parte Reexamination carefully reviewed the cited art 

and identified several substantial new questions of patentability” (Reply at 2), which is just another 

way of saying they believe a stay should be granted simply because EPR has been instituted. This 

Court has squarely rejected such a rule. See Solas OLED Ltd. v. Samsung Display Co., Ltd., No. 

2:21-cv-00104-JRG, Dkt. 75 at 6 (E.D. Tex. Feb. 22, 2022).

Defendants also wrongly assert that “Cobblestone’s argument that PTO statistics show it 

is far more likely that the claims will be confirmed than canceled” is “disingenuous.” Reply at 2.

This is absolutely true, as this Court recognized in Longhorn. 2022 WL 71652, at *3 n.6. The 

screenshot in Defendants’ reply brief shows that there is a higher probability of all claims being 

confirmed than all claims being canceled (21.9% vs. 15.2%). Reply at 3. Additionally, the 

likelihood of at least some claims surviving reexam is far greater than the likelihood of all claims 

being canceled (84.8% vs. 15.2%). While it may be true that some of those surviving claims may 

be amended, “there is no way to know how or if such changes are significant or minor.” Longhorn, 

2022 WL 71652, at *3 n.6. At the end of the day, all Defendants have to offer is speculation, which 

is insufficient to support a stay.

Finally, Defendants assert that the “PTAB’s reasoning on claim construction—and the 

parties’ arguments concerning it—could simplify or affect Markman briefing and arguments in 

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this case.” Reply at 3. But aside from vaguely referencing Cobblestone’s preliminary responses, 

Defendants still have not specifically identified any claim construction issues in this case that may 

be affected by the statements in those responses. In any event, simplification is still speculative 

and unlikely given that the IPRs have not been instituted, and even assuming institution, the Court 

is not bound by the PTAB’s claim constructions. Not surprisingly, Defendants cite no authority 

supporting that the mere possibility of PTO proceedings affecting claim construction supports an 

exception to this Court’s practice of denying pre-institution motions to stay.

The Prejudice to Cobblestone. Defendants first argue that Cobblestone cannot be 

prejudiced by delaying resolution of this case potentially for years because it waited three months 

longer to file this case than the Samsung and carrier cases filed in June 2023. This is nonsensical. 

Three months is a negligible difference and certainly not unreasonable, especially for a small 

company like Cobblestone. Defendants cite no authority otherwise. Defendants again point to the 

fact that Cobblestone has only produced a few documents, but fail to acknowledge much less 

dispute that in patent cases, the bulk of relevant documents typically comes from the accused 

infringer. The volume of documents produced by the patentee is hardly a reliable measure of 

prejudice. Defendants’ arguments also ignore the long line of cases from this Court holding that 

delaying a plaintiff’s vindication of its patent rights constitutes undue prejudice, even where only 

monetary damages are sought. See, e.g., MyPort, Inc. v. Samsung Electronics Co., Ltd., No. 2:22-

43-CV-00114-JRG, Dkt. No. 73 at 4 & n.2 (E.D. Tex. Jun. 13, 2023).

Finally, Defendants’ assertion that “Cobblestone controls the timing of [the IPR] 

proceedings” and “can proceed on the expeditious schedule in progress, or delay resolution before 

the Patent Office by requesting extensions” (Reply at 4) also fails. There is no evidence that 

Cobblestone intends to request any extensions. Nor does Cobblestone anticipate making any such 

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requests. But even if it did, Cobblestone has no control over the trial schedule and the timing of 

the PTAB’s final written decision. It is also unclear how any hypothetical extensions requested by 

Cobblestone—which would be made solely so that Cobblestone could exercise its right to provide 

complete well-supported responses to the petitioners’ arguments—somehow negate the prejudice 

that would result by delaying resolution of this case. 

The Stage of the Case. Defendants argue that “the parties and the Court have not yet 

invested substantial resources” (Reply at 5), which is simply untrue. Fact discovery and claim 

construction are well under way. The parties will exchange proposed claim constructions in less 

than a week. And as noted in Cobblestone’s opposition, claim construction discovery will be 

completed and opening claim construction briefs will have been served before the institution 

deadline for Defendants’ IPR. The deadline for substantial completion of document production is 

shortly thereafter. A final written decision in Defendants’ IPR—if instituted—would not come 

until after the trial in this case. Defendants still offer no explanation for they waited six months 

after the case was filed and three months after receiving Cobblestone’s infringement contentions 

to file a petition for IPR. While it may be true that a lot of substantive work remains, this could be 

said at virtually every stage of litigation and at best makes this factor neutral—it does not support 

a stay. See Longhorn, 2022 WL 71652, at *4 (“Although it is true that the parties, and the Court, 

will still invest additional resources in this case, all dates for remaining case events—including 

trial—have been set and the Court intends to maintain those dates. Accordingly, the Court finds 

this factor does not favor a stay.”). 

Defendants’ motion to stay should be denied.

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Dated: July 24, 2024 Respectfully submitted,

/s/ Reza Mirzaie

Reza Mirzaie

CA State Bar No. 246953

Marc A. Fenster

CA State Bar No. 181067

Neil A. Rubin

CA State Bar No. 250761

Christian W. Conkle

CA State Bar No. 306374

Jonathan Ma

CA State Bar No. 312773

RUSS AUGUST & KABAT

12424 Wilshire Boulevard, 12th Floor

Los Angeles, CA 90025

Telephone: 310-826-7474

Email: rmirzaie@raklaw.com

Email: mfenster@raklaw.com

Email: nrubin@raklaw.com

Email: cconkle@raklaw.com

Email: jma@raklaw.com

Attorneys for Plaintiff

Cobblestone Wireless LLC

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CERTIFICATE OF SERVICE

I hereby certify that on July 24, 2024, I electronically filed the foregoing document with 

the Clerk of the Court for the Eastern District of Texas using the ECF System which will send 

notification to the registered participants of the ECF System as listed on the Court’s Notice of 

Electronic Filing.

/s/ Reza Mirzaie

Reza Mirzaie 

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