Adaptix ASUS
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 06085590ADAPTIX OPPOSITION TO MOTION TO ENFORCE PATENT LICENSE AGREEMENT 1 CASE NO. 5:14-CV-03112 [COUNSEL LISTED ON SIGNATURE BLOCK] UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ADAPTIX, Inc., Plaintiff, v. ASUSTEK COMPUTER INC., ASUS COMPUTER INTERNATIONAL, et al., Defendants. Case No. 5:14-cv-03112-PSG ADAPTIX’S OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT Hearing Date: March 17, 2015, 10 a.m. Courtroom 5, 4 th Floor Honorable Magistrate Judge Paul S. Grewal I. INTRODUCTION Adaptix filed its complaint against ASUSTeK Computer Inc. and ASUS Computer International (collectively “ASUS” or “Defendant”) on May 28, 2014 alleging infringement of U.S. Patent Nos. 7,454,212 and 6,947, 748. Dkt. No. 1. This case was transferred to the Northern Dist rict of Cali fornia on July 8, 2014 from the Eastern District of Texas. Dkt. No. 42. Since this case’s transfer, the parties have engaged in numerous sett lement discussions. Those discussions only started to become serious during November 2014. During mid-December, the parties started to exchange proposals and were close to reaching agreement. See Declaration of Curtis Dodd in Support of Adaptix’s Opposition to Motion To En force Settlement Agreement (“Dodd Dec.”) at ¶3. The conversations made clear that a deal must be done by December 31, 2014. See Exh. A to Dodd Dec. (Email dated Dec. 17 from C. Dodd to R. Liao). As that date approached, Adaptix again confirmed the understanding of the parties that a deal would be done by the end of the year. See Exh. B to Dodd Dec. (Email dated Dec. 25 from C. Dodd to R. Liao). When a proposal was finally sent by ASUS, Adaptix made clear its revisions and the importance of getting the agreement signed by the end of the year. See Exh. C to Dodd Dec. (Email dated Dec. 30 from C. Dodd to R. Liao). Case5:14-cv-03112-PSG Document97 Filed02/27/15 Page1 of 4
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Adaptix ASUS
Transcript of Adaptix ASUS
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28 06085590ADAPTIX OPPOSITION TO MOTION TO ENFORCE PATENT LICENSE AGREEMENT 1 CASE NO. 5:14-CV-03112
[COUNSEL LISTED ON SIGNATURE BLOCK]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
ADAPTIX, Inc., Plaintiff, v. ASUSTEK COMPUTER INC., ASUS COMPUTER INTERNATIONAL, et al., Defendants.
Case No. 5:14-cv-03112-PSG ADAPTIXS OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT Hearing Date: March 17, 2015, 10 a.m. Courtroom 5, 4th Floor Honorable Magistrate Judge Paul S. Grewal
I. INTRODUCTION
Adaptix filed its complaint against ASUSTeK Computer Inc. and ASUS Computer International
(collectively ASUS or Defendant) on May 28, 2014 alleging infringement of U.S. Patent Nos.
7,454,212 and 6,947, 748. Dkt. No. 1. This case was transferred to the Northern District of California
on July 8, 2014 from the Eastern District of Texas. Dkt. No. 42.
Since this cases transfer, the parties have engaged in numerous settlement discussions. Those
discussions only started to become serious during November 2014. During mid-December, the parties
started to exchange proposals and were close to reaching agreement. See Declaration of Curtis Dodd
in Support of Adaptixs Opposition to Motion To Enforce Settlement Agreement (Dodd Dec.) at 3.
The conversations made clear that a deal must be done by December 31, 2014. See Exh. A to Dodd
Dec. (Email dated Dec. 17 from C. Dodd to R. Liao). As that date approached, Adaptix again
confirmed the understanding of the parties that a deal would be done by the end of the year. See Exh.
B to Dodd Dec. (Email dated Dec. 25 from C. Dodd to R. Liao). When a proposal was finally sent by
ASUS, Adaptix made clear its revisions and the importance of getting the agreement signed by the end
of the year. See Exh. C to Dodd Dec. (Email dated Dec. 30 from C. Dodd to R. Liao).
Case5:14-cv-03112-PSG Document97 Filed02/27/15 Page1 of 4
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28 ADAPTIX OPPOSITION TO DEFENDANTS MOTION FOR ATTORNEYS FEES 2 CASE NOS. 5:13-CV-01776; 01777; 01778; 01844; 02023
On December 30, 2014, Adaptix sent a copy of the signed agreement to ASUS with several
changes and expected a signed copy to be returned that day. See Exh. 2 to Declaration of Ricky Liao
in Support of Defendants Motion to Enforce Settlement Agreement (Liao Dec.). ASUS responded
the same day that they would get the agreement signed immediately and send a copy back to Adaptix.
See Exh. D to Dodd Dec. (Email dated Dec. 30 from R. Liao to C. Dodd). Adaptix again confirmed
that a signed agreement must be executed by December 31. See Exh. E to Dodd Dec. (Email dated
Dec. 30 from C. Dodd to R. Liao). Further, ASUS expressly acknowledged that an agreement was not
fully executed noting: I have to let you know I already do my best [sic], but I cannot give you the
fully executed [sic] before 2014/12/31. I will scan/email the fully executed agreement to you when it
complete [sic]. See Exh. F to Dodd Dec. (Email dated Dec. 31 from R. Liao to C. Dodd). Adpatix
further wrote to ASUS expressing their strong desire to continue with the agreement, but when no
agreement was sent to Adaptix, they withdrew their counteroffer. See Exh. G to Dodd Dec. (Email
dated Dec. 31 from C. Dodd to R. Liao).
On January 19, 2015, ASUS finally signed the agreement. See Liao Dec. at 9. Furthermore, it
was not until ASUS insisted on bringing the instant motion that they produced a copy of the signed
agreement to Adaptix. See Dodd Dec. at 11.
II. ARGUMENT
1) ADAPTIX SHOULD BE AFFORDED A FULL EVIDENTIARY HEARING GIVEN THE FACTUAL NATURE OF THIS INQUIRY.
It is well settled that a district court has the equitable power to enforce summarily an
agreement to settle a case pending before it. Callie v. Near, 829 F.2d 888, 890 (9th Cir. 1987);
Russell v. Puget Sound Tug & Barge Co., 737 F.2d 1510, 1511 (9th Cir. 1984) (finding summary
enforcement of settlement agreement not appropriate in situations presenting complex factual issues).
However, the district court may enforce only complete settlement agreements. Callie, 829 F.2d at
890. Where material facts concerning the existence or terms of an agreement to settle are in dispute,
the parties must be allowed an evidentiary hearing. Id.
Here, the dispute is whether a contract exists. There is no complete agreement and Adaptix
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28 ADAPTIX OPPOSITION TO DEFENDANTS MOTION FOR ATTORNEYS FEES 3 CASE NOS. 5:13-CV-01776; 01777; 01778; 01844; 02023
should be afforded an evidentiary hearing. The Court should not be rushed into a decision by a
summary proceeding. Rather, it should be given a full factual record with which to make its
determination.
2) DEFENDANTS MOTION SHOULD BE DENIED BECAUSE THERE WAS NO CONTRACT.
California law requires that acceptance must be absolute and unqualified. Cal. Civ. Code
1585. Even stating that [a] qualified acceptance is a new proposal. Id. [T]erms proposed in an
offer must be met exactly, precisely and unequivocally for its acceptance to result in the formation of a
binding contract; and a qualified acceptance amounts to a new proposal or counteroffer putting an end
to the original offer. Panagotacos v. Bank of Am., 70 Cal.Rptr.2d 595, 597 (1998)(internal citations
omitted); The Siegel v. Warner Bros. Entm't Inc., 542 F. Supp. 2d 1098, 1137 (C.D. Cal. 2008).
In Panagotacos, the sellers wrote to the buyer offering their property subject to certain terms.
70 Cal.Rptr.2d at 596. The buyer responded to the sellers enclosing a signed copy of the offer with a
cover letter depicting certain terms not contained in the offer. Id. The court held that no contract
existed reasoning that the proposal constituted a counteroffer because of the additional terms included
in the cover letter. Id. at 597.
Here, when the signed agreement was sent to ASUS, it is undisputed that changes were made
to the offer that were still subject to approval by ASUS. Additionally, Adaptix made clear that an
executed copy of the agreement must be received by December 31, 2014. Therefore, a court hearing
these facts should hold similarly to the court in Panagotacos that additional terms proposed in
conjunction with a signed agreement constitute a counteroffer.
3) THE PAROL EVIDENCE RULE DOES NOT EXCLUDE EVIDENCE TO PROVE THAT NO CONTRACT EXISTED.
The California Code of Civil Procedure provides, in pertinent part, that [w]here the validity of
the agreement is the fact in dispute the parol evidence rule does not exclude evidence relevant to
that issue. Code Civ. Proc. 1856(f). Parol evidence is always competent to show the nonexistence
of the contract. Halldin v. Usher, 321 P.2d 746, 752 (1958); see also San Diego Cnty. v. Viloria, 80
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28 ADAPTIX OPPOSITION TO DEFENDANTS MOTION FOR ATTORNEYS FEES 4 CASE NOS. 5:13-CV-01776; 01777; 01778; 01844; 02023
Cal. Rptr. 869, 869 (Cal. Ct. App. 1969)(recognizing that application of the parol evidence rule is not
involved in determining whether a contract exists).
Here, the dispute between the parties is whether there is an enforceable contract. Therefore,
parol evidence should be admissible to prove the existence of a contract. On December 30, Adaptix
confirmed to ASUS that they were still waiting on the executed agreement and that if one is not
received by December 31 then their counteroffer is withdrawn. This course of conduct proves
Adaptix was never under the impression that a contract ever existed and confirms that the act of
sending a signed agreement to ASUS operated as a counteroffer. ASUS confirmed this fact when,
after having received the signed agreement, they acknowledged that there was no fully executed
agreement. A court hearing this matter should find that the parties did not intend for the signed
agreement sent by Adaptix to operate as a fully executed agreement.
III. CONCLUSION
For the foregoing reasons, Adaptix respectfully prays that the Court allow a full evidentiary
hearing to determine whether a contract existed. Moreover, Adaptix respectfully asks this court to
deny Defendants motion and find that no contract existed between the parties.
Dated: February 27, 2015 ADAPTIX, INC. By: /s/ Paul J. Hayes Paul J. Hayes (pro hac vice) Kevin Gannon (pro hac vice) HAYES MESSINA GILMAN HAYES, LLC 200 State Street, 6th Floor Boston, MA 02109 [email protected] [email protected] Telephone: (617) 439-4200 Christopher D. Banys Jennifer L. Gilbert Banys, P.C. 1032 Elwell Court, Suite 100 Palo Alto, CA 04303 [email protected] [email protected] Telephone: (650) 308-8505
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