Free Memorandum in Opposition - District Court of California - California

Case 5:06-cv-01839-PVT

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KARL J. KRAMER (CA SBN 136433) ERIKA L. YAWGER (CA SBN 234919) LAURA MASON (CA SBN 252251) MORRISON & FOERSTER LLP 755 Page Mill Road Palo Alto, California 94304-1018 Telephone: 650-813-5600 Facsimile: 650-494-0792 [email protected] Attorneys for Defendant and Counterclaimant SYNAPTICS, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ELANTECH DEVICES CORPORATION, a corporation existing under the laws of Taiwan, R.O.C., Plaintiff, v. SYNAPTICS, INC., a Delaware corporation; AVERATEC, INC., a California corporation; and PROSTAR COMPUTER, INC., a California corporation, Defendants.

Case No.

C06-01839 CRB

SYNAPTICS, INC.'S OPPOSITION TO ELANTECH'S MOTION TO TAKE PRELIMINARY INJUNCTION MOTION OFF CALENDAR PENDING TRANSFER OF CASE OR, IN THE ALTERNATIVE, MOTION FOR CONTINUANCE

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OPP. TO MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR, OR MOTION FOR CONTINUANCE CASE NO. C06-01839-CRB

AND RELATED COUNTERCLAIMS

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Case 5:06-cv-01839-PVT

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Elantech's motion to take the pending motion for preliminary injunction motion "off calendar" is a blatant delay tactic. Elantech waited until the last moment to file this request and simply ignored its obligation to respond timely to Synaptics' motion for preliminary injunction. Elantech is using the possible transition of the case to a Magistrate Judge as an excuse for delay. The essence of Synaptics' preliminary injunction motion is that Synaptics is being exposed to continued, ongoing irreparable harm. Elantech's infringing touchpads are currently being sold in notebook computers in the United States, causing immediate irreparable harm to Synaptics. In particular, ASUS Computer International, a Fremont, California company, recently launched a new notebook computer in the United States that features Elantech's touchpads. See Declaration of Kenneth Geisler in Opposition to Elantech's Motion ("Geisler Decl."), ¶¶ 3, 4. To prevent further harm, Synaptics respectfully requests that this motion be heard by the Court, as originally noticed, on June 13, 2008. I. PROCEDURAL HISTORY & FACTS

On January 11, 2008, Synaptics filed two motions for partial summary judgment that the use of Elantech's products meets claims of U.S. Pat. Nos. 6,380,931, 5,543,591, 5,943,052, and 5,880,411 (collectively the "patents-in-suit"). Docket Nos. 213, 214 (public: 235, 238). These motions for partial summary judgment were granted in part on April 16, 2008. Docket No. 307 (public: 313). After Elantech refused Synaptics' efforts to reach a mutually agreeable stipulated preliminary injunction after the Court's summary judgment rulings, on May 9, 2008, Synaptics filed a Motion for Preliminary Injunction, which is scheduled to be heard on June 13, 2008. Docket No. 317. For nearly two weeks following the filing of Synaptics' motion, Elantech did not contact counsel for Synaptics to request any extension of time to oppose Synaptics' motion. (Declaration of Erika L. Yawger in Opposition to Elantech's Motion To Take Preliminary Injunction Motion Off Calendar Pending Transfer of the Case, or in the alternative, Motion for Continuance ("Yawger Decl."), ¶ 2; Declaration of Karl J. Kramer in Opposition to Elantech's Motion To Take Preliminary Injunction Motion Off Calendar Pending Transfer of the Case, or in the alternative, Motion for Continuance ("Kramer Decl."), ¶ 2.) Instead, after 2:00 p.m. on the
OPP. TO MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR, OR MOTION FOR CONTINUANCE CASE NO. C06-01839-CRB

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day before its opposition was due, Elantech sent an e-mail message to counsel for Synaptics requesting an extension of time to oppose Synaptics' preliminary injunction motion. (Yawger Decl., Ex. A.) Synaptics counsel immediately called counsel for Elantech and expressed surprise at the last-minute request for a three-week extension of time. (Yawger Decl., ¶ 4, Ex. B.) After speaking with the client, Synaptics' counsel informed Elantech that they could not agree to a further delay of resolution of this matter given the urgency of the pending motion for preliminary injunction and Elantech's recent infringing activities in the United States. (Yawger Decl., Ex. C.) II. ELANTECH'S REQUEST SHOULD BE DENIED

Elantech has no excuse for failing to respond timely to Synaptics' motion for preliminary injunction. Elantech argues that Synaptics' motion is too complicated to respond to in the time allowed by the rules, that its expert teaches university courses and was too busy to offer an expert opinion, and that the parties might agree to have this matter tried by a different judge. (Elantech Motion, 2:15-21.) Nothing Elantech described in its present motion amounts to a real exigency that explains or excuses Elantech's failure to seek additional time to oppose until the day before its motion was due. Moreover, Elantech's last-minute request belies Elantech's position. Elantech counsel either did nothing for two weeks to prepare an opposition, or knew all of the facts on the day after Synaptics' motion was filed but waited until the last-minute to seek relief. In either event, Elantech's conduct was unjustified. Instead of filing a timely response, Elantech chose to create its own exigency by waiting until the eve of its deadline to file the present last-minute petition. Elantech now seeks a minimum three-week extension, which is more than twice the amount of time provided by the local rules. By contrast, within hours of receiving Elantech's motion for preliminary injunction, Synaptics' counsel contacted Elantech to raise the need for an extension, and the parties filed a joint stipulation shortly thereafter. (Yawger Decl., ¶¶ 8, 9, Ex. D.) Elantech agreed to the extension because it knew that Synaptics' counsel had previously stated that all relevant counsel would be out of the country over the year-end holidays during the period that the opposition would be due. (Id.) Synaptics was ultimately able to respond to Elantech's preliminary injunction motion over the holidays with a short two-week extension, which accounted for the
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two weeks when Synaptics' counsel were out of the country and unavailable to investigate and respond to the merits of Elantech's motion. Elantech has had ample time to prepare for the preliminary injunction. Indeed, Elantech gave almost no opposition to the underlying summary judgment motion, which was filed in January and has now had over six weeks since the issuance of the summary judgment order to prepare its defenses. Moreover, Elantech never mentioned any need for a delay in the discussions the parties held concerning the possibility of a stipulated preliminary injunction order that preceded Synaptics' motion for preliminary injunction. (Yawger Decl., ¶ 10.) Elantech and its counsel apparently did nothing to prepare for, or even plan to prepare for, the opposition that is now past due, and never raised the need for more time. (Yawger Decl., ¶¶ 2, 3, 10; Kramer Decl., ¶ 2.) Any exigency about which Elantech now complains is of its own creation. Furthermore, any delay in the resolution of Synaptics' preliminary injunction motion adds to the irreparable harm being caused by Elantech's persistent, aggressive infringement. If Synaptics' motion is taken off-calendar, as Elantech requests, Elantech will enjoy an indefinite amount of time to respond to Synaptics' motion, all the while reaping the competitive advantage gained by continuing to market aggressively. Just a few short weeks ago, ASUS Computer International launched a new line of ASUS Eee PC 900 notebook computers in the United States that contain Elantech touchpads. (Geisler Decl., ¶¶ 3, 4.) With each passing day and week, the irreparable harm caused by Elantech's infringement mounts. Whether this case will ultimately be tried by a Magistrate Judge is an entirely separate issue with no bearing on Synaptics' present motion for preliminary injunction and, as of this date, has not been settled. (Yawger Decl., ¶¶ 6, 7.) Synaptics' motion should be heard quickly, as originally noticed, by this Court ­ the Court that best understands the facts and issues in this case. Elantech's strategic manipulation of the Court and its calendar is improper and should be rejected. III. CONCLUSION

Elantech has provided no explanation for its two-week delay in seeking an extension of time to respond to Synaptics's motions for preliminary injunction. There is no justification for now requesting, at the last minute, a three-week (or indefinite) extension of time to file an
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opposition. Elantech continues to infringe and induce infringement of Synaptics' patents in the United States. This infringing activity causes ongoing irreparable harm. Synaptics respectfully requests that the Court deny Elantech's motion. Dated: May 27, 2008 KARL J. KRAMER ERIKA L. YAWGER LAURA MASON MORRISON & FOERSTER LLP

By:

s/Karl J. Kramer Karl J. Kramer Email: [email protected] Attorneys for Defendant and Counterclaimant SYNAPTICS, INC.

OPP. TO MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR, OR MOTION FOR CONTINUANCE CASE NO. C06-01839-CRB pa-1257666

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[PROPOSED] ORDER DENYING ELANTECH'S MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR, OR MOTION FOR CONTINUANCE; CASE NO. C06-01839 CRB pa-1257676

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ELANTECH DEVICES CORPORATION, a corporation existing under the laws of Taiwan, R.O.C., Plaintiff, v. SYNAPTICS, INC., a Delaware corporation; AVERATEC, INC., a California corporation; and PROSTAR COMPUTER, INC., a California corporation,

Case No.

C06-01839 CRB

[PROPOSED] ORDER DENYING ELANTECH'S MOTION TO TAKE PRELIMINARY INJUNCTION MOTION OFF CALENDAR PENDING TRANSFER OF THE CASE OR, IN THE ALTERNATIVE, MOTION FOR CONTINUANCE

AND RELATED COUNTERCLAIMS

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GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that: Plaintiff Elantech Devices Corp.'s Motion to Take Preliminary Injunction Motion Off Calendar Pending Transfer of the Case or, in the Alternative, Motion for Continuance is DENIED. The hearing of Synaptics, Inc.'s Motion for Preliminary Injunction will be heard as originally scheduled on June 13, 2008.

Dated: _____________________

By: UNITED STATES DISTRICT COURT JUDGE HONORABLE CHARLES R. BREYER

[PROPOSED] ORDER DENYING ELANTECH'S MOTION TO TAKE PRELIM. INJUNCTION MOTION OFF CALENDAR, OR MOTION FOR CONTINUANCE; CASE NO. C06-01839 CRB pa-1257676

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