Nordock v. Systems - Opposition To Motion To Certify

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN
NORDOCK, INC.,
Plaintiff,
Civil Action No. 11-cv-118
v.
Magistrate Judge William E Duffin
SYSTEMS, INC.,
Defendant.
DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO CERTIFY
Defendant Systems, Inc. (System), by and through undersigned counsel, hereby

opposes Plaintiff Nordock, Inc.s motion to certify this Courts November 21, 2017 Order
governing re-trial of the remaining issues in this matter. Nordocks motion is little more than a
thinly disguised, last minute attempt to resurrect its now denied motion for summary judgment
regarding what constitutes the relevant article of manufacture in this case. More importantly,
the Federal Circuit has clearly indicated that it is not presently inclined to address the particulars
as to how article of manufacture issues are to be resolved, preferring, instead, for the district
courts to address and develop appropriate procedures and records before conducting appellate
review.
Attached as Exhibit A is the Federal Circuits March 17, 2017 decision remanding this
case to this Court. Of particular note is that the Federal Circuit declined the invitations of both
parties to decide the matter on the basis of the existing record and, instead, remanded the case,
noting that, on remand, The trial court will...have the opportunity to consider the parties
arguments with respect to the relevant article of manufacture in the first instance, and that,
[T]he parties will have the opportunity to develop the record regarding what constitutes the
relevant article of manufacture in these circumstances. Clearly, the Federal Circuit does not
believe the record is sufficiently developed at present to enable it to provide meaningful
MANN LAW GROUP

Systems Opposition to Motion to 1218 Third Avenue, Suite 1809
Certify - 1 Seattle, WA 98101
TELEPHONE: 206.436.0900
Case 2:11-cv-00118-WED Filed 12/13/17 Page 1 of 4 Document 274
appellate review, and there is no reason to believe that the court would somehow be more
inclined to do so now. Nordocks dramatic claim that this Courts framework for resolving the
factual issue of what constitutes the article of manufacture is a matter of national concern,
requiring immediate appellate review, is illusory. The Federal Circuit was well aware of the
arguments made not only by Nordock and Systems, but by Apple and Samsung (and numerous
Amici) in a similar parallel action as well, but nevertheless consciously chose, in both cases, not
to weigh in at this time as to how such a factual issue is to be resolved. Asking the Federal
Circuit for the third time to make such a determination when it has now twice declined to do so
is unlikely to accomplish anything more than simply delay this already overly long case and
result in still further waste of both the parties and the Courts resources.
Interlocutory appeals are the rare exception, not the rule, and if Nordock were to be
indulged, there would no-doubt be further appeals every time this Court made an evidentiary
ruling or decided on a jury instruction. The Court has wide discretion regarding its procedures
for addressing factual issues, such as the one presented here, and whether this Court has abused
its discretion in adopting the procedures it did in its November 21, 2017 Order is not yet ripe for
review. Nor should it be. In the absence of any supplementation of the record whatsoever, and
without any guidance or experience as to how the Courts procedures actually work out in
practice, how is the Federal Circuit to conduct any meaningful review at this time? Again, the
Federal Circuit has at least twice declined prior invitations to define an appropriate test. There is
no reason to believe it will do so now either.
For all these reasons, Nordocks request for certification should be denied, and its request
to further delay final resolution of this matter should be denied as well. Such action by this
Court is respectfully requested.
Dated: December 13, 2017 Respectfully submitted,
/s/ Philip P. Mann
Philip P. Mann, WSBA No: 28860
MANN LAW GROUP
1218 Third Avenue, Suite 1809
Seattle, Washington 98101
Systems Opposition to Motion to Certify - 4

(206) 436-0900
[email protected]
Attorneys for Defendant Systems, Inc.

CERTIFICATE OF SERVICE
I hereby certify that on the date indicated below, I electronically filed the foregoing with
the Clerk of the Court using the CM/ECF system which will send notification of such filing to
the following:
Jeffrey S. Sokol [email protected]
Executed on December 13, 2017.
/s/ Philip P. Mann

EXHIBIT A
Case No. 11-cv-118
(Federal Circuits March 17, 2017 Remand Order)
Case 2:11-cv-00118-WED Filed 12/13/17 Page 1 of 6 Document 274-1


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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

Defendant Systems, Inc. (System), by and through undersigned counsel, hereby

MANN LAW GROUP

Systems Opposition to Motion to Certify - 4

Attorneys for Defendant Systems, Inc.

Systems Opposition to Motion to Certify - 4

Jeffrey S. Sokol [email protected]

Executed on December 13, 2017.

/s/ Philip P. Mann

Systems Opposition to Motion to Certify - 4

(Federal Circuits March 17, 2017 Remand Order)

Case 2:11-cv-00118-WED Filed 12/13/17 Page 1 of 6 Document 274-1

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