Blackboard Inc. v. Desire2Learn Inc, No. 9:06-cv-00155 (E.D. Tex. Dec. 3, 2007)

Before the court is Defendant Desire2Learn’s generous attempt to assist the court in organizing the blizzard of paper the parties have produced since October 4, 2007.' Desire2Learn has thoughtfully listed all pending dispositive motions in this case, as well as their associated responses, replies, and sur-replies. What Desire2Learn failed to do was compute the total number of pages these motions comprise. Including attachments, the grand total for these twenty-four documents is well over 8000 pages.”

Of course, this total does not include ten other motions filed during this period, including four Motions to Strike and two Motions to Compel.’ In fact, every time the court attempts to delve into the substantive issues of the six dispositive motions filed by the parties between

'The chart is attached to this Order. *Based on an eight hour, five day work week, even if the court had devoted all of its time between October 4 and November 30 to the task, it would still have had to read more than 25 pages an hour in order to burrow through the mountain of motions generated by the parties.

• * See Docs. #119, 121, 135, 137, 140, 141, 146, 168, 169, and 181. One oft hese motions requested expedited briefing.

  

2October 4 and October 22%, it is almost immediately distracted by another discovery dispute’ or petty squabble over page limits®.

Therefore, in order to secure the just, speedy and inexpensive determination of this action pursuant to Fed. R. Civ. P. 1, the court will deny all pending motions for summary judgment. Counsel on both sides are certainly skillful enough to focus the jury’s attention on the key issues at trial, where the main disputes between the parties can be fully aired. Disposing of these motions in this manner will also free the court to devote the necessary time and attention to the pre-trial motions which will almost certainly be forthcoming, as well as the still-pending Motions to Strike and Compel.

IT IS THEREFORE ORDERED that the following motions are DENIED: 1. Blackboard’s Motion For Partial Summary Judgment on Desire2Learn’s Third

Affirmative Defense of Express or Implied License/Patent Exhaustion [Doc. # 118];

2. Blackboard’s Motion For Partial Summary Judgment on Desire2Learn’s

Affirmative Defense and Counterclaim of Inequitable Conduct [Doc. # 124];

“This total excludes a seventh dispositive motion filed by Desire2Learn and struck per court order for exceeding the sixty page limit for dispositive motions. See Doc. # 148.

>See Doc. # 164 (granting Blackboard’s Motion to Compel [Doc. # 140]); Doc. # 181 (yet another Motion to Compel filed by Blackboard on November 27).

°For an entertaining example, see Blackboard’s recent Motion to Strike For Exceeding the Page Limits [Doc. # 169]. After having successfully argued on a previous occasion that Desire2Learn’s final Motion For Summary Judgment should be struck for exceeding the page limits, because a prior filing in which Desire2Learn included both a dispositive motion and a response to one of Blackboard’s dispositive motions should be treated as a motion, Blackboard later attempted to convince the court that the same document should now be treated as a response for purposes of the page limit on responses to dispositive motions. The court declined to accept this creative argument. See Doc. # 172.

33. Desire2Learn’s Cross-Motion For Summary Judgment of License and Motion to

Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) For Lack of Subject Matter Jurisdiction [Doc. # 126];

4. Desire2Learn’s Motion For Summary Judgement on Unenforceability of U.S.

Patent No. 6,988,138 [Doc. # 127];

5. Desire2Learn’s Motion For Summary Judgment on Invalidity of U.S. Patent No.

6,988,138 [Doc. # 129]; and

6. Blackboard’s Motion For Partial Summary Judgment on its Claims of Direct and

Indirect Infringement of Claim 36 of the ‘138 Patent [Doc. # 130].

So ORDERED and SIGNED this 3. day of December, 2007.

Thr. Chek Ron Clark, United States District Judge

4Case 9:06-cv-00155-RC Document 187

Filed 12/03/07 Page 4 of 7 PagelD #:

ot

| Blackboard Inc.'s Motion for Partial Octob

er 18, 2007 at 6:53 PM CDT Doc. No. Summary Judgment on Desire2Learn's Affirmative Defense and Counterclaim of Inequitable Conduct

© Desire2Learn's Response November 2, 2007 at 5:29 PM CDT

Doc. No. 144 Opposing Blackboard's Motion for Partial Summary Judgment on Desire2Learn's Affirmative Defense and Counterclaim of Inequitable Conduct and Request for Oral Argument e Blackboard's Reply | November 13, 2007 at 7:5

3 PM Doc. No. 160 Memorandum in Support of Its CST Motion for Partial Summary Judgment on Desire2Learn's Affirmative Defense and Counterclaim of Inequitable Conduct e Desire2Learn's.Surreply _ | Novemb2e1r, 200a7t 12:29 PM

Doc. No. 178 "Opposing Blackboard's Motion.

for Partial Summary Judgment

on Desire2Learn's Affirmative Defense and Counterclaim of Inequitable Conduct and Request for Oral Argument, | Desire2Learn's Motion for Summary

October 19, 2007 at 7:31 PM CDT Doc. No. 127 Judgment on Unenforceability of U.S. Patent No. 6,988,138

e¢ Blackboard's Memorandum in November 5, 2007 at

5:43 PM CST Doc. No. 147 Response to Desire2Learn's Motion for Summary Judgment of Unenforceability of U.S. Patent No. 6,988,138 e Desire2Learn's Reply in November 13, 2

007a.t 10:16 PM Doc. No. 162 Support of Its Motion for CST Summary Judgment on Unenforceability of U.S. Patent No. 6,988,138 and Request for Oral Argument _ © Blackboard's Surreply in November 19, 2007 at 4:42 PM

Doc. No. 175 Opposition to Desire2Learn's CST

5~ Case 9:06-cv-00155-RC Document187 Filed 12/03/07 Page 5 of 7 PagelD #:

Motion for Summary Judgment of Unenforceability of U.S. Patent No. 6,988,138 Licensing/ 12(b)(1) Dispositive E it | Filing DD ate and TimBe e ~— Docket Number

0) Motions. odei

fee Oo Blackboard’s Motion for Partial “October 4, 3007 at re2 8 PM[ CDT Doc. No. 118 Summary Judgment on Desire2Learn's Third Affirmative Defense of Express or Implied License/Patent Exhaustion

e Desire2Learn’s: (1) Response October 19, 2007 at 2:09 PM CDT Doc. No. 126

to Blackboard'’s Motion for Partial Summary Judgment on Desire2Learn's Third Affirmative Defense of Express or Implied License/Patent Exhaustion; (2) Cross-Motion for Summary Judgment of License; and (3) Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) for Lack of Subject Matter Jurisdiction e Blackboard's Reply October 31, 2007 at 3:28 PM CDT Doc. No. 142

Memorandum in Support of Its Motion for Partial Summary Judgment on Desire2Learn's Third Affirmative Defense of Express or Implied License/Patent Exhaustion, e Desire2Learn's Surreply to November 7, 2007 at 5:01 PM CST Doc. No. 152

Blackboard's Motion for Partial Summary Judgment on Desire2Learn's Third Affirmative Defense of Express or Implied License/Patent Exhaustion, Desire2Learn’s: (1) Response to October 19, 2007 at 2:09 PM CDT Doc. No. 126 Blackboard's Motion for Partial Summary Judgment on Desire2Learn's Third Affirmative Defense of Express or Implied License/Patent Exhaustion; (2) Cross-Motion for Summary Judgment of License; and (3) Motion

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6Filed 12/03/07

Case 9:06-cv-00155-RC Document 187 Page 6 of 7 PagelD #:

to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1fo)r Lack of Subject

Matter Jurisdiction

e¢ Blackboard's Memorandum in November 5, 2007 at 4:52 PM CST

Doc. No. 145 Response to Desire2Learn's Cross-Motion for Summary Judgment of License and Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant.to Federal Rule of Civil Procedure 12(b)(1) e Desire2Learn's Reply in November 13, 2007 at 5:24 PM

Doc. No. 159 Support of Its Motion to CST Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) for Lack of Subject Matter Jurisdiction and Its Motion for Summary Judgment of License e Blackboard's Sur-reply November 19, 2007 at 4:40 PM Doc. No. 174

Memorandum in Opposition to CST Desire2Learn's Cross-Motion for Summary Judgment of License and Motion to Dismiss for Lack of Subject Matter Jurisdiction - Invalidi Desire2Learn's Motion for Summary

October 22, 2007 at 4:54 PM CDT Doc. No. 129 Judgment on Invalidity of U.S. Patent No. 6,988,138

¢ Blackboard's Memorandum In November 6, 2007 at 5:34 PM CST

Doc. No. 149 Response to Desire2Learn's Motion for Summary Judgment on Invalidity of U.S. Patent No. 6,988,138 e Desire2Learn's Reply in November 14, 2007 at 4:48 PM

Doc. No. 165 Support of Its Motion for CST Summary Judgment on Invalidity of U.S. Patent No. 6,988,138 and Request for Oral Argument e Blackboard's Surreply in November 15, 2007 at 2:45 PM

Doc. No. 167 Response to Desire2Learn's CST Reply in Support of Its Motion for Summary Judgment on Invalidity of U.S. Patent No.

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76,988,138 Infringement Dispositive Motion — __| Docket Number.

October 22, 2007 at 5:20 PM CDT Blackboard's Motion for Partial

Doc. No. 130 Summary Judgment on Its Claim of Direct and Indirect Infringement of Claim 36 of the ’138 Patent

e Desire2Learn's Response to November 6, 2007 at 9:09 PM CST Doc. No. 151

Blackboard's Motion for Partial Summary Judgment on its Claim of Direct and Indirect Infringement of Claim 36 of the °138 Patent and Request for Oral Argument Blackboard's Reply November 19, 2007 at 8:50 PM Doc. No. 176 Memorandum in Support of Its CST Motion for Partial Summary Judgment on Its Claim of Direct and Indirect Infringement of Claim 36 of the ’138 Patent Desire2Learn's Surreply in November 26, 2007 at 5:41 PM Doc. No. 180 Support of its Response to CST Blackboard's Motion for Partial Summary Judgment on its Claim of Direct and Indirect

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