IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION

COBBLESTONE WIRELESS, LLC, 

Plaintiff, 

v. 

CELLCO PARTNERSHIP d/b/a VERISON

WIRELESS

Defendants, 

Case No. 2:23-cv-00382-JRG-RSP

(LEAD CASE)

JURY TRIAL DEMANDED

COBBLESTONE WIRELESS, LLC, 

Plaintiff, 

AT&T MOBILITY LLC, AT&T SERVICES, 

INC., AND AT&T CORP.,

Defendants,

Case No. 2:23-cv-00380-JRG-RSP

(Member Case)

JURY TRIAL DEMANDED

COBBLESTONE WIRELESS, LLC, 

Plaintiff, 

v. 

T-MOBILE USA, INC. 

Defendant

Case No. 2:23-cv-00381-JRG-RSP

(Member Case)

JURY TRIAL DEMANDED

------AND------

COBBLESTONE WIRELESS, LLC, 

Plaintiff, 

v. 

CELLCO PARTNERSHIP d/b/a VERISON

WIRELESS

Defendants, 

ERICSSON INC., and NOKIA OF AMERICA

CORPORATION

Intervenors,

Case No. 2:22-cv-00477-JRG-RSP

(LEAD CASE)

JURY TRIAL DEMANDED

Case 2:23-cv-00382-JRG-RSP Document 99 Filed 01/29/24 Page 1 of 8 PageID #: 830
COBBLESTONE WIRELESS, LLC, 

Plaintiff, 

AT&T MOBILITY LLC, AT&T SERVICES, 

INC., AND AT&T CORP.,

Defendants,

ERICSSON INC., and NOKIA OF AMERICA

CORPORATION

Intervenors,

Case No. 2:22-cv-00474-JRG-RSP

(Member Case)

JURY TRIAL DEMANDED

COBBLESTONE WIRELESS, LLC, 

Plaintiff, 

v. 

T-MOBILE USA, INC. 

Defendant,

ERICSSON INC., and NOKIA OF AMERICA

CORPORATION

Intervenors.

Case No. 2:22-cv-00478-JRG-RSP

(Member Case)

JURY TRIAL DEMANDED

PLAINTIFF’S SUR-REPLY IN OPPOSITION TO MOTION TO CONSOLIDATE

Case 2:23-cv-00382-JRG-RSP Document 99 Filed 01/29/24 Page 2 of 8 PageID #: 831
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Consolidating the Carrier 1 and Carrier 2 cases would not promote judicial efficiency as the cases 

concern different patents and different accused functionalities. Indeed, Defendants have still failed to 

specifically identify any common issues, such as overlapping claim construction terms or invalidity 

theories. Any minimal cost savings that would result from the requested consolidation is far outweighed by 

the substantial prejudice that would result from delaying trial in the Carrier 1 cases, which are now in the 

midst of claim construction, by eight months. 

A. Consolidation Will Not Meaningfully Reduce Duplication and Costs Given That 

There Are No Overlapping Patents and Different Accused Functionalities 

Defendants do not dispute that the Carrier 2 cases involve a different, unrelated patent with a 

different specification and different inventors. Instead, they argue that this does not matter because 

consolidation will “prevent unnecessary costs resulting from two separate yet duplicative Markman 

hearings and trials.” Reply at 2. But Defendants have yet to specifically identify any overlapping claim 

construction terms or issues. The Immersion case on which Defendants rely is easily distinguishable, as the 

movant in that case (Samsung) specifically identified several common claim terms in its motion, and the 

plaintiff used the same language to describe the patents in both cases. Immersion Corp. v. Samsung Elecs. 

Am., Inc., No. 2:17-cv-00572-JRG, Dkt. 48 at 3 (E.D. Tex. Apr. 27, 2018) (Mirzaie Sur-Reply Decl. at Ex. 

A); Immersion Corp. v. Samsung Elecs. Am., Inc., No. 2:17-cv-00572-JRG, Dkt. 61 at 1–2 (E.D. Tex. June 

8, 2018) (Mirzaie Sur-Reply Decl. at Ex. B). In addition, Samsung’s proposal in Immersion was far more 

reasonable, as they sought to shorten the schedule for the second action and extend the schedule in the first 

action by only three months. Mirzaie Sur-Reply Decl. at Ex. A at 9. Here, Defendants refuse to consider 

shortening the Carrier 2 schedule at all, and instead seek to delay the Carrier 1 cases by eight months. This 

is unreasonable and will not promote judicial efficiency. See Smartflash LLC v. Google, Inc., No. 6:14-CV435, 2014 WL 11071872, at *3 (E.D. Tex. July 7, 2014) (“Delaying the [first-filed] case [five months], to 

accommodate for a case that may feature different claims, different invalidity theories, and different terms 

for construction would not avoid unnecessary cost or delay.”)

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Defendants’ allegation that the same base stations are accused in both sets of cases is also 

unavailing. As explained in detail in Cobblestone’s opposition, the cases accuse entirely different 

functionalities of the accused base stations and user equipment. The Carrier 1 cases concern 5G 

beamforming, supplemental uplink, bandwidth adaptation, handover, and wifi-only automatic update

functionalities, whereas the Carrier 2 cases focus on carrier aggregation functionalities. Defendants fail to 

address these differences in their reply, and still fail to specifically identify any common issues with respect 

to the accused products. The mere fact of some general product overlap is insufficient to support 

consolidation, especially given how far apart in time the cases are. See Smartflash, 2014 WL 11071872, at 

*2 (“Despite the factual overlap, consolidation is not appropriate for these cases. Neither party’s proposal 

will promote judicial efficiency without prejudicing the other party.”); Trevizo v. Cloonan, No. P-00-CA028, 2000 WL 33348794, at *2 (W.D. Tex. Nov. 29, 2000) (“[T]he mere presence of a common question of 

law or fact does not mandate consolidation; a district judge may refuse a request to consolidate cases if the 

common question is not a central one [or] if consolidation will cause delay in one or more of the individual 

cases.”); Entropic Commc’ns, LLC v. Charter Commc’ns, Inc., No. 2:22-CV-00125-JRG, 2023 WL 

5613185, at *1 (E.D. Tex. Aug. 29, 2023) (denying consolidation despite the patents having “similar claims” 

and the “same specification and inventors,” and the accused products having have the “same definition”).

Defendants next argue that “Cobblestone asserts the exact same five patents against Samsung in 

the Samsung case, which shows that Cobblestone believes all discovery for all accused functionality can 

be dealt with in one case.” Reply at 2. Once again, Defendants miss the point. Whether it is logistically 

possible for discovery for the different patents and different accused functionalities to be “dealt with in one 

case” is not the issue. The issue is whether there is sufficient overlap in the issues such that consolidation 

would reduce duplication and costs. Defendants have not specifically identified any common issues or 

theories. Given the different asserted patents and accused functionalities, combining the Markman hearings 

and jury trials will not meaningfully simplify the proceedings or reduce the amount of work expended by 

the parties and the Court. And to the extent there is overlap regarding the accused products, Defendants do 

not dispute that any duplication in discovery will be addressed by the parties’ cross-use agreement. See 

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3

Fenner Invs., Ltd. v. 3Com Corp., No. CIV.A.6:08-CV-61, 2008 WL 4876816, at *3 (E.D. Tex. Nov. 12, 

2008) (denying consolidation and noting that “[t]o the extent that the Defendants in the two actions will be 

engaging in the same discovery for their respective cases, those discovery efforts can be coordinated by the 

parties whether or not those actions are formally consolidated”). 

Defendants’ assertion that the “disputed terms of the ’802 patent will also need to be construed in 

the Samsung case” (Reply at 3) does not support consolidation. To the contrary, it only confirms that the 

Court will have to conduct multiple Markman hearings and jury trials, regardless of whether the Carrier 1 

and 2 cases are consolidated. “Furthermore, the earlier Markman hearing to be held in the [Samsung] action 

may resolve related issues in the [Carrier 2 cases], and thus preserve judicial economy.” Fenner, 2008 WL 

4876816, at *3.

Finally, Defendants argue that consolidating the Carrier 1 and Carrier 2 cases “will avoid 

unnecessary repetition and costs because Cobblestone 2.0 is scheduled directly behind the Samsung Case.” 

Reply at 3. But as explained in Cobblestone’s opposition, this argument fails for multiple reasons: (1) 

Samsung is not the only manufacturer/supplier of accused products—other manufacturers/suppliers include 

Nokia, Ericsson, and Apple (Ex. 3 at 2); (2) the carrier Defendants are not mere resellers of the accused 

products, but rather customize the accused products to their respective networks; and (3) Defendants have 

not agreed to be bound by any decisions in the Samsung case. Opp. at 7. Defendants ignore all of these 

arguments. Instead, Defendants assert that the Samsung claims should be tried first because there are some 

Samsung products at issue in the Carrier cases, and “Cobblestone cannot recover for infringement of the 

same exact product in both cases.” Reply at 4. This fails. A motion to consolidate is not the proper vehicle 

for litigating such alleged damages issues (or the customer suit exception to a motion to stay). Nor will the 

requested consolidation somehow eliminate the need to litigate such issues in the Carrier cases.

B. Consolidation Will Substantially Prejudice Cobblestone by Delaying Trial for Eight 

Months

Defendants’ assertion that “no substantial activity has occurred” in the Carrier 1 cases is false. Most 

notably, the parties in the Carrier 1 cases have already exchanged claim terms, preliminary claim 

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4

constructions, and extrinsic evidence, whereas the deadline to simply exchange claim terms in the Carrier 

2 is nearly six months away. The mere fact that fact and expert discovery remain open in the Carrier 1 cases 

is inconsequential, and ignores that fact discovery is well underway and will close in just over three months. 

Moreover, this Court has made clear that consolidation is inappropriate if it, like here, “will delay existing 

trial settings.” SFA Sys., LLC v. drugstore.com, Inc., No. 6:11-CV-635, 2012 WL 12899088, at *1 (E.D. 

Tex. Sept. 11, 2012) (denying consolidation under similar circumstances where the parties had already filed 

the joint claim construction and prehearing statement in the first case and the same deadline in the second 

case was six months away); see also AGIS Software Dev. LLC v. Waze Mobile Ltd., No. 2:19-CV-00359-

JRG, 2022 WL 1608047, at *4 (E.D. Tex. May 20, 2022) (“different trial schedules ... with varying 

deadlines” weighs against consolidation). Defendants do not and cannot dispute that the requested 

consolidation will delay trial in the Carrier 1 cases by eight months. Defendants’ reliance on the Immersion

case fails for the reasons discussed above, namely that there was more overlap in the issues, and the 

requested consolidation shortened the trial schedule in the second case and delayed trial in the first case by 

three months. Defendants’ attempt to distinguish the Entropic case is also unavailing, as the Court made 

clear that the primary concern is whether the requested consolidation will delay trial, and that even a fourmonth delay of the trial would be substantially prejudicial to the plaintiff. See Entropic, 2023 WL 5613185, 

at *1–2.

Defendants’ repeated assertion that “Cobblestone sat on the ’802 Patent for months before asserting 

it in Cobblestone 2.0” (Reply at 5) still fails. Defendants have yet to produce any authority supporting that 

Cobblestone’s filing of the Carrier 2 complaints a mere four months after acquiring the ’802 patent 

somehow supports delaying the Carrier 1 cases by eight months. 

Finally, Defendants’ assertion that putting the Carrier 2 cases on the same schedule as the Carrier 

1 cases “prejudices Defendants’ ability to conduct a fulsome investigation of the ’802 patent” (Reply at 5) 

confirms that there is not nearly as much overlap in the issues as Defendants’ claim. If the issues were truly 

the same, then expediting the Carrier 2 cases should not be a problem. Defendants essentially admit that 

the ’802 patent implicates different issues and different theories and thus requires a separate investigation.

Case 2:23-cv-00382-JRG-RSP Document 99 Filed 01/29/24 Page 6 of 8 PageID #: 835
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* * *

For the reasons set forth above and in Cobblestone’s opposition, Defendants’ motion to consolidate 

should be denied.

Dated: January 29, 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 

Amy E. Hayden

CA State Bar 287026

Jacob R. Buczko

CA State Bar No. 312773

Peter Tong

TX State Bar No. 2419042 

Matthew D. Aichele

VA State Bar No. 77821

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: ahayden@raklaw.com

Email: jbuczko@raklaw.com

Email: ptong@raklaw.com

Email: maichele@raklaw.com

Email: cconkle@raklaw.com

Email: jma@raklaw.com

Case 2:23-cv-00382-JRG-RSP Document 99 Filed 01/29/24 Page 7 of 8 PageID #: 836
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CERTIFICATE OF SERVICE

The undersigned certifies that on January 29, 2024, all counsel of record who are deemed to have 

consented to electronic service are being served with a copy of this document via the Court’s CM/ECF 

system pursuant to Local Rule CV-5(a)(3).

/s/ Reza Mirzaie

Reza Mirzaie 

Case 2:23-cv-00382-JRG-RSP Document 99 Filed 01/29/24 Page 8 of 8 PageID #: 837