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    Miscellaneous Docket No.

    UNITED STATES COURT OFAPPEALS

    FOR THE FEDERAL CIRCUIT

    IN RE HO KEUNG, TSE,Petitioner Pro Se.

    ,, ., 1c ,. . . .,H X :.. . .:

    ON PETITION FOR A WRIT OF MANDAMUS TO THEUNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF CALIFORNIA IN CASE NO.C06-06573 SBA,JUDGE SAUNDRA B. ARMSTRONG

    BRIEF FOR PETITIONER

    Ho Keung, TSE, Pro se Petitioner,P.O. Box 80306Cheung Sha Wan Post OfficeHong KongTel : 608.268.3667

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    CERTIFICATE OF INTEREST

    Pursuant to Federal Circuit Rule 47.4 (a), Petitioner ProSe, Ho Keung TSEcertifies as tbllows:l. The full name of Petitioner Pro Se is :HoKeungTSE2. The names of the real parties in interest represented by me are:HoKeungTSE3. The names of aU law firms and the partners or associates that appeared forme in the trial court, or are expected to appear in this Court, are:NILDate: Sept 17, 2013

    ii

    Respectfully submitted,~ ~~ K e EL P.O. Box 80306

    Cheung Sha Wan Post OtliceHong Kongtse20 [email protected] ff Pro Se

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    STATEMENTOF RELATED CASESNo other appeal in or from this civil action C4:06-6573-SBA was previouslybefore this or any other appellate court. No case is known to counsel forplaintiffs/cross-appellants to be pending in this or any other court that willdirectly affect or be directly affected by this Court's decision in the pendingappeal.

    Date: Sept 17. 2013

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    Respectfully submitted,

    Cheung Sha Wan Post OfficeHong Kongtse20 [email protected]

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    TABLE OF CONTENTSINTRODUCTION............................................................................ 1STATEMENT OF RELIEF SOUGHT......................................... 2ISSUE PRESENTED ............................................................. 4STANDARD OF REVIEW...................................................... 5STATEMENT OF FACTS

    1) A Never-Ending Stay of TSE I, An Inexplicable Stay of TSEII, Two Undecided Motions and Two Futile Notices.............. 8

    2) A Discovery Dispute in TSE II, with Irreparable Harm toPetitioner- Unresolved for almost a year. ............................ 13ARGUMENT

    A. PETITIONER HAS NO OTHER MEANS, SUCH AS ANAPPEAL, TO OBTAIN THE DESIRED RELIEF .............. 17

    B. THE DISTRICT COURT'S DENIAL TO LIFT STAY ISCLEARLY ERRONEOUS AS A MATTER OF LAW....... 18

    C. DISCOVERY ON APPLE ......................................... 201. The Concept of Invention. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212. Direct Infringement of Apple's App Store .............. 223. Contributory Infringement of Apple's Third Party

    Developers .................................................. 234. Dismissal of Ascedia, Inc. for Not Sufficient

    Pleading..................................................... 245. Irreparable Harm to Petitioner ............................. 256. Other Objections ofApple, Inc ........................... 26

    CONCLUSION.................................................................... 30

    IV

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    TABLE OF AUTHORITIESFEDERAL CASES

    In re TS Tech USA Corp., 551 F.3d 1315, 1318 (Fed. Cir. 2009).. ......... 6Advanced Cardiovascular Sys., Inc. v. Medtronic, Inc., 265 F.3d 1294, 6-1307-08 (Fed. Cir. 2001)........... .... .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 7In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 803 (Fed. Cir.2000)............. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 7Manildra Milling, 76 F.3d at 1181........................................ .... ... 7In re Nintendo Co., Ltd., 589 F.3d 1194, 1197, 93 U.S.P.Q.2d 1152(Fed. Cir. 2009).. .. . .. . . . . .. .. .. .. .. . .. .. .. .. .. . .. . .. .. .. . .. .. . .. . .. . .. .. .. .. . .. .... 7See Admiral Ins. Co. v. US. Dist. Ct. for Dist. ofAriz., 881 F.2d 1486,1490-91 (9th Cir. 989)............................................................ 8Hernandez v. Tanninen, 604 F.3d 1095, 1101-02 (9th Cir. 2010).. .. ... . ... 8Marti v. Baires, 2012 U.S. Dist. LEXIS 77962 (E.D. Cal. June 5, 2012) .... 14Cherokee Nation ofOkla. v. United States, 124 F.3d 1413, 1416 (Fed.Cir.1997) ................................................................................. 18Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S. 476, 488(1964) ................................................................................ 25

    U.S. Supreme Court CASESMallardv. US. Dist. Court490 U.S. 296,309 (1989) ........................ 6Landis v. North American Co., 299 U.S. at 255 (1936) ....................... 13Landis v. North American Co., 299 U.S. at 248 (1936) ....................... 19

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    FEDERAL STATUTES28 U.S.C. 1651(a) (2006) ....................................................... 635 U.S.C. 271(c) .................................................................. 25

    RulesCivil L.R. 7-13 ofDistrict Court for Northern District ofCalifornia ......... 1137 CFR 1.322(a) .................................................................... 13FED. R. CIV. P. 34(a), (b)(2)(B) and (C) ........................................ 14

    VI

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    APPENDIX- Volume 1 (Al-73)Docket Sheet- Case 4:06-cv-06573 SBA("TSE F')................... Al-16Docket Sheet- Case 4: 12-cv-02653 ("TSE IF')........................ A17-24US Patent 6,665,797. .... .... . .. ... ... ... .... .. ...... ...... ...... ...... ... A25-34Apple et al. 's Motion to Stay Proceedings Pending Reexaminationof U.S. Patent No. 6 ,665,797.... ... ... . ..... ... . .. .. ...... .. .... ....... .. . A35-46Order Granting Motion to Stay Proceedings PendingReexamination of U.S. Patent No. 6,665,797...... ....... ... ........... A47-55Order Denying Petitioner's First Motion to Lift Stay, P.7... ......... A57-58Petitioner's Notice oflssuance of Reexamination Certificate.... .... A59-65Petitioner's Motion to Clarify Stay Status, and ifthe Stay is still inPlace, to Lift Stay (Second Motion to Lift Stay)....................... A67-73

    APPENDIX- Volume 2 (A75-153)Apple's Motion to Consolidate Related cases [TSE I and TSE II]and Stay TSE II............................................................. A75-82Petitioner's "Opposition to Apple Inc.'s Motion to ConsolidateRelated Cases and Stay; and Cross Motion for Order DeterminingResponsibility of Apple, Inc. in Seeking Correction on Claims 3,23"...... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A83-93Request for Production of Documents 3............................. ... A95-97Joint Discovery Letter Brief with Exhibit.............................. A99-106Petitioner's Notice of Issuance of Certificate of Correction ofClaims 1,3 ................................................................... A107-110Order Granting Motion to Consolidate Related cases [TSE I andTSE II] and Stay TSE II................................................... Alll-119First Notice Regarding Submitted Second Motion to Lift Stay ...... Al21-123

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    Apple et al. 's Response to Notice Regarding Submitted SecondMotion to Lift Stay ......................................................... A125-127Second Notice Regarding Submitted Second Motion to Lift Stay .. A129-132First Notice Regarding Submitted Discovery Letter Brief withExh. A-D ..................................................................... A133-148Order dismissing Discovery Letter Brief without Prejudice... . . . A 149-150Order to dismiss Ascedia (West Wisconsin Court) .................... A151-153

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    INTRODUCTION1

    This is a patent infringement case to stop Defendants' infringement ofPlaintiffs United States Patent No. 6,665,797 (" '797 patent", A25-34).Petitioner is the sole owner of '797 patent and seeks injunctive relief andmonetary damages.

    In 2007, the district court stayed Petitioner's case C4:06-6573-SBA("TSE P'), as demanded by defendants Apple et al. in their "Motion to StayProceedings Pending Reexamination ofU.S. Patent No. 6,665,797" (Dkt. 78,A35-46).

    However, after the reexamination has completely finished in Aug. 2012,the district court did not lift stay.

    Instead, on Feb. 5, 2013, the district court ordered (two identical orders:TSE I, Dkt. 204, Alll-119 and TSE II, Dkt.89) to stay another case ofPlaintiff, C4:12-2653 SBA ("TSE Ir'), by consolidating it with TSE I. Thereason for the stay is, "[TSE 1] is currently stayed pending reexamination ofthe '797 patent."

    ' The Appendix will be cited as "A_."

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    In June 2013, the district court dismissed (Dkt. 221, A149-150) a JointDiscovery Letter Br ief (Dkt. 84, A99-1 06) of TSE IJ, filed by Petitioner andApple, Inc. ("Apple") in Nov 2012, in which Petitioner sought an order tocompel Apple to produce a full and complete response to Peitioner's"Second Set of Requests for Production ofDocuments", which contains oneRequest for Production of Documents 3 (A95-97) only, for seeking emailaddresses, US addresses of third party developers who have submitted Apps(application programs) for sale at Apple's App Store.

    Despite the dismissal is without prejudice, however, when coupled withthe stay, has actually the effect of closing all doors to a discovery whichPetitioner is entitled to and desperately needs.

    STATEMENT OF RELIEF SOUGHT

    Petitioner respectfully requests that this District court grant this petitionfor a writ of mandamus, vacate the district court's order (Dkt. 97, A47-55) togrant stay issued in 2007;

    Or in the alternative, remand with instruction to enter an order to grant

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    Petit ioner's Motion to Clarify Stay Status, and if the Stay is still in Place, toLift Stay ("Second Motion to lift Stay"2, Dkt. 183, A67-73) filed on Sept. 25,2012;

    Further, remand with instructions to:a) enter an order to compel defendant Apple, Inc. ("Apple") to respond

    "fully and completely" to Petitioner's Request 3 for Production ofDocuments (A95-97) and if necessitated by Apple's resistance, Request 4for Production ofDocuments3 which is a supplement ofRequest 3 ;

    b) the chief judge of the district court for reassignment to anotherdistrict judge (preferably, a judge participating in the patent pilot program)or to transfer the case to another more speedy venue.

    2 Petitioner's first motion to lift stay (Dkt. 144) was filed in 2010 and deniedby an order (Dkt.15 5). It is irrelevant to this petition.3 Petitioner will serve on defendant Apple, Inc., Request 4 for Production ofDocuments, on the same day this petition is filed, with a view to offer moretime for defendant Apple, Inc, as the 30 day discovery response deadlinewould not start to count down until stay is lifted. The Request 4 forProduction ofDocuments, is as follows :"A list of all third party developers who have submitted Apps (applicationprograms) to Apple, for sale at App Store, including their respective identitysuch as company name, personal name, contact information including emailaddress, physical address, phone number as well as name ofApp, unit sellingprice ofApp and most recent available total sales of App."

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    ISSUES PRESENTED1. Did the district court (District Judge Hon. Armstrong) exceed thebounds of its authority and commit a clear abuse of discretion, in granting arelief upon a "Motion to Stay Proceedings Pending Reexamination ofU.S.Patent No. 6,665,797" (A35-46), which is more than that being sought, asnow the stay is still maintained, whereas the reexamination has completelyfinished more than one year, with no other reexamination(s) pending?

    This is a new and important problems or issues of first impressionwhen injustice is done by inaction of a district court, whether this Courtshould interfere and how?2, Did the district court (District Judge Hon. Armstrong) commit a clearabuse of discretion, in ordering to stay TSE II, by consolidating TSE II withanother case TSE I which is stayed previously ?3. Whether the district court should order defendant Apple, Inc. to producePetitioner information related to third party developers who are allegedlyinfringing the sole patent-in-suit '797 patent contributorily, including but notlimited to, their names (business or personal), contact information

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    (email/physical address, telephone number), name ofApp, unit selling priceofApp, most recent available total sales ofApp, in light of the irreparableharm to Petitioner caused by Apple's denial to production, as will besubmitted below, when a stay is imposed?Another new and important problems or issues of first impression.4. Whether Petitioner's case should be reassigned to another district judge4,or transfer to another more efficient venue ?

    STANDARD OF REVIEWThis Court has the authority to issue a writ of mandamus against a lower

    court under common law as codified in the All Writs Act. "[A]ll courts

    4 "First, we ask whether the district court has exhibited personal biasrequiring recusal from a case." United Nat'! Ins. Co. v. R & D Latex Corp.,242 F.3d 1102, 1118 (9th Cir. 2001). The Ninth Circuit also employs athree-factor test to determine whether to remand a case to a different districtjudge, United States v. WolfChild, 699 F.3d 1082, 1102 (9th Cir. 2012):(1) whether the original judge would reasonably be expected upon remand tohave substantial difficulty in putting out of his or her mind previouslyexpressed views or findings determined to be erroneous or based onevidence that must be rejected, (2) whether reassignment is advisable topreserve the appearance of ustice, and (3) whether reassignment wouldentail waste and duplication out of proportion to any gain in preserving theappearance of fairness.

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    established by Act of Congress may issue all writs necessary or appropriatein aid of their respective jurisdictions and agreeable to the usages andprinciples oflaw." 28 U.S.C. 165l(a) (2006).

    "The writ ofmandamus is available in extraordinary situations to correcta clear abuse of discretion or usurpation of judicial power." In re TS TechUSA Corp., 551 F.3d 1315, 1318 (Fed. Cir. 2009). A district court abuses itsdiscretion if it "relied on clearly erroneous factual findings, made erroneousconclusions of law, or misapplied the law to the facts." !d. at 1319. A "clear"abuse of discretion exists where the district court below reached a "patentlyerroneous result." !d. (quotations and citations omitted). Where there are noother means of correcting a patently erroneous result, the right to issuance ofa writ of mandamus is "clear and indisputable." !d.

    A party seeking a writ bears the burden of proving that it has no othermeans of obtaining the relief desired, Mallard v. U.S. Dist. Court 490 U.S.296, 309 ( 1989).

    In respect of issue 3, "Federal Circuit law applies to discovery matters ifthe determination implicates an issue of substantive patent law." Advanced

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    Cardiovascular Sys., Inc. v. Medtronic, Inc., 265 F.3d 1294, 1307-08 (Fed.Cir. 2001); In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 803 (Fed.Cir. 2000). In deciding which law to apply, Federal Circuit considers severalfactors including: "the uniformity in regional circuit law, the need topromote uniformity in the outcome of patent litigation, and the nature of thelegal issue involved." Manildra Milling, 76 F.3d at 1181.

    However, in respect of other "Stay" issues, "Because .. .does not involvesubstantive patent-law issues, this [Federal Circuit] Court applies the laws ofthe circuit in which the district court sits." See In re Nintendo Co., Ltd., 589F.3d 1194, 1197, 93 U.S.P.Q.2d 1152 (Fed. Cir. 2009). In this case, it is theNinth Circuit.

    The Ninth Circuit applies five criteria, known as the "Bauman factors",to determine whether mandamus is appropriate in a given case: ( 1) whetherthe petitioner has no other means, such as an appeal, to obtain the desiredrelief; (2) whether the petitioner will be damaged or prejudiced in any waynot correctable on appeal; (3) whether the district court order is clearlyerroneous as a matter of law; (4) whether the district court's order is an

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    oft-repeated error or manifests a persistent disregard of the federal rules; (5)whether the district court's order raises new and important problems orissues of first impression. See Admiral Ins. Co. v. US. Dist. Ct. for Dist. ofAriz., 881 F.2d 1486, 1490-91 (9th Cir. 989). The factors serve as"guidelines"-"a point of departure" for the Court's analysis of the proprietyof mandamus relief. !d. at 1491. The petitioner need not satisfy all fivefactors--indeed, "the fourth and fifth Bauman factors are rarely, if ever,present at the same time." Id.; see Hernandez v. Tanninen, 604 F.3d 1095,1101-02 (9th Cir. 2010) (granting writ where only first three Bauman factorswere satisfied).

    STATEMENT OF FACTS1) A Never-Ending Stay of TSE I, An Inexplicable Stay of TSE II , TwoUndecided Motions and Two Futile Notices

    In 2007, Defendants Apple et al. filed a Motion (Dkt. 78, A35-46) to StayProceedings Pending Reexamination of U.S. Patent No. 6,665,797 for case

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    C4:06-6573-SBA("TSEF')5Shortly after, the district court issued an order (Dkt. 97, A47-55), to grant

    the stay sought by the motion.

    On May 3, 2010, the District court denied Plaintiffs first Motion to LiftStay (Dkt. 144). In the Order (Dkt. 155), P.7 (A57-58), the District courtfurther stated it "will lift the stay upon the issuance of the reexaminationcertificate arising from this action."

    On Aug 7, 2012, a reexamination certificate ("Reexamination Certificate")was issued by the United States Patent and Trademark Office ("PTO").Petitioner promptly notified the District court of the fact on Aug 8, 2012(Dkt. 179, A59-65).

    The district court did not lift the stay.Consequently, Petitioner filed his second motion to lift stay, entitled

    Motion to Clarify Stay Status, and if the Stay is still in Place, to Lift Stay(Dkt. 183, A67-73) on Sept. 25, 2012, but is undecided as of to date.

    5 For info, TSE I was originally filed in Maryland, 2005, later transferred toNorthern California by a motion of defendants Apple, Inc. et al.

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    In a case management conference on Oct 11, 2012, upon hearingDefendant Apple, Inc.'s Counsel's allegation of errors in claims 1, 3 and 23of reexamination certificate, the district court asked Apple to file a motion tostay TSE II, and accordingly, Apple filed a Motion to Consolidate Relatedcases [TSE I and TSE II] and Stay TSE IF' (Dkt.76, A75-82), on Oct 17,2012.

    On Oct 23, 2012, Petitioner filed an "Opposition to Apple Inc.'s Motionto Consolidate Related Cases and Stay; and Cross Motion for OrderDetermining Responsibility of Apple, Inc. in Seeking Correction onClaims 3, 23" (Dkt. 78, A83-93).

    The purpose of the Cross Motion is to seek the district court to confirmthat it is defendant Apple, Inc.'s responsibility, not Petitioner's, to seek thePatent Office to correct the reexamination certificate, if Apple, but notPetitioner, believes there is any error.

    The cross motion is also undecided as of to date.On Dec 4, 2012, the PTO issued a "Certificate of Correction", for

    correcting claims 1,3 in the Reexamination Certificate. Petitioner promptly

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    notified the district court ofthe fact on Dec 10, 2012 (Dkt. 201, A107-110).Again, the district court did not lift stay of TSE I.Even worse, on Feb. 5, 2013, the district court ordered (two identical

    orders: TSE I, Dkt. 204, A 111-119 and TSE II, Dkt.89) to stay another caseof Plaintiff, C 4:12-2653 SBA ("TSE If'), by consolidating it with TSE I.The district court stated at 8 (A118), "B. Motion to Stay" that, "In light ofthe District court's ruling on the motion to consolidate, Defendant's motionto stay is MOOT. The instant action has been consolidated with TSE I, whichis currently stayed pending reexamination of the '797 patent." [sic, s/b "waspending" as the reexamination has completely finished in 2012]

    Originally, Petitioner thought the district court was going to, as it should,lift stay soon after the consolidation, therefore didn't appeal immediately.However, after submitting two Notices Regarding Submitted SecondMotion to Lift Stay (Dkt. 214, A121-123 and Dkt. 223, A129-132), inpursuant to Civil L.R. 7-136 ofNorthem District ofCalifornia, in March and

    6 According to Civil L.R. 7-13. entitled "Notice Regarding SubmittedMatters", "Whenever any motion or other matter has been under submissionfor more than 120 days, a party, individually or jointly with another party,may file with the District court a notice that the matter remains under

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    June 2013 respectively, Petitioner become realized that, for some reason(s)that Petitioner does not even know, the district court will not lift the stay.

    Despite Petitioner submitted, in the second Notice Regarding SubmittedSecond Motion to Lift Stay A131, "Plaintiff has no way to seek the PatentOffice to 'correct' claims 21 and 23 which contain no error"; and "Shouldthe Court believes there is anything Plaintiff would be able to do or need todo, in order to facilitate the stay to be lifted, Plaintiff respectfully requestedthe Court to notified Plaintiff', the Court was as silent as before.

    And, because the district court did not rule on the cross motion, noparty-in-suit filed any request to correct claim 23 7 with the Patent Office, afact that the district court had been repeatedly informed by Petitioner'scommunications, including the two above-mentioned notices.

    Even though defendants did not and had repeatedly refused Petitioner'scounter-request to, file a request to correction with the Patent Office

    submission. If udicial action is not taken, subsequent notices may be filed atthe expiration of each 120-day period thereafter until a ruling is made."7 On Dec 4, 2012, the Patent Office issued a "Certificate of Correction"(A 107-11 0) for correcting claims 1, 3 in the Reexamination Certificate.

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    themselves8, they nevertheless insisted the stay be maintained, for the reasonthat claim 23 "still not corrected", as readable in their response (Dkt. 215,A125-127) to Petitioner's first Notice Regarding Submitted Second Motionto Lift Stay. Their argument is disingenuous.9

    In sum, the district court has done absolutely nothing from 2007 to 2013,except staying Petitioner's cases TSE I and TSE II, one after another.

    2) A Discovery Dispute in TSE II, with Irreparable Harm toPetitioner- Unresolved for almost a year.

    On September 20, 2012, Petitioner served defendant Apple, Inc. of TSEII (before it is consolidated with TSE I and stayed in 2013) with his Second

    8 See 37 CFR 1.322(a) (1): The Commissioner may issue a certificate ofcorrection pursuant to 35 U.S.C. 254 to correct a mistake in a patent,incurred through the fault ofthe Office, which mistake is clearly disclosed inthe records of the Office: . . . . . . . . . . . . . . . . . . (iii) Acting on informationabout a mistake supplied by a third party. (emphasis added)Note that "The Commissioner may issue a certificate of correction", not"shall", and it requires the "mistake is clearly disclosed in the records of theOffice".9 "the suppliant for a stay must make out a clear case of hardship or inequityin being required to go forward, if there is even a fair possibility that the stayfor which he prays will work damage to some one else." Landis v. NorthAmerican Co., 299 U.S. at 255 (1936).

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    Set ofRequests for Production of Documents, which contains one Requestno.3 (A95-97) , here below is its real image :

    REQUEST NO. 3:A list of all third party developers who have submitted Apps (application programs) to

    Apple, for sale at App Store, including their respective email address, and if available, the USdistrict code of their respective US address. Plaintiff will send each of them a notification ofinfiingement at their respective email address.

    Apple responded by denying the request, with a main reason that TSE Iis stayed (Apple, Inc. is also a defendant in TSE 1), together with numerousboilerplate objections 10 and privilege assertions, without producing privilegelog, as prescribed by Fed. R. Civ. P. 26(b)(5). Here below is the real imageof its response :

    RESPONSE TO REQUEST FOR PRODUCTION NO.3:Apple incorporates its general objections. Apple objects to this request as prematme, as

    (1) this case and Tse /have been related, and Tse I is stayed and (2) pursuant to the parties'agreement dming the October 1L 2012 Case Management Conference, cun-ent deadlines aresuspended 1mtil the Court has mled on Apple's pending motion to consolidate and stay.

    1FED. R. CIV. P. 34(a), (b)(2)(B) and (C). Generic, boilerplate objectionsto discovery are not sufficient. See Marti v. Baires, 2012 U.S. Dist. LEXIS77962 (E.D. Cal. June 5, 2012) (reliance on boilerplate objections is anabuse of the discovery process). A party resisting discovery must make someshowing as to how each discovery request is not relevant and/or is overlybroad or unduly burdensome.

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    Apple further objects to this request as facially overly broad, unduly burdensome, andharassing to Apple and non-parties, and as seeking documents that are neither relevant norreasonably calculated to lead to the discovery of admissible information. In his request, 1\.f:r. Tsemakes clear his intent to use the requested infonnation for purposes beyond the scope of thislitigation, i.e., to "send each [third party developer) a notification of their [alleged) infringementat their respective email address." This ptupose is improper.

    Apple further objects to this request as unduly bmdensome as it seeks infonnationregarding "all third pru1y developers." Apple finther objects to this request to the extent it seeks a"list" that Apple does not create in the ordinary comse of business. Apple further objects to theextent that this request seeks docmnents protected by the attorney-client privilege, the workproduct docnine, the common interest privilege, or any other applicable privilege or immmuty.Apple further objects to this request to the extent that it requests infonnation protected by privacylaws. Apple fiuther objects to tlus request as requesting confidential infonnation to which"Mr. Tse is not entitled access under the governing protective order.

    As the dispute cannot be resolved between parties, Petitioner and Applefiled a Joint Discovery Letter Brief (Dkt. 84, A99-1 06) with the districtCourt on Nov 6, 2012, addressed to Hon. Magistrate Judge Donna M. Ryu("DMR"), who was in charge ofdiscovery matters.

    The Joint Discovery Letter Brief was undecided, until Petitioner filedtwo Notices Regarding Submitted Discovery Letter Brief, in pursuant toCivil L.R. 7-13 (see footnote 6 above) ofNorthem District ofCalifornia, on

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    May 9, 2013 (Consolidated Case No. C 06-06573 SBA (DMR), Dkt. 217,A133-148) and May 12,2013 (Consolidated Case No. C 06-06573 SBA(EDL), Dkt. 219) 11 , respectively.

    But the result is, the Joint Discovery Letter Briefwas dismissed withoutprejudice, by an order dated May 23, 2013 (Dkt.221, A149-150) by ChiefMagistrate Judge Hon. Elizabeth D. Laporte ('EDL"), for the reason "theconsolidated case is stayed pending reexamination of the patent in suit". [sic,s/b "was pending" as the reexamination has completely finished in 2012] 12

    Despite the dismissal is without prejudice, however, when coupled withthe endless stay imposed by Judge Hon. Armstrong, it has actually the effectof closing all doors to a discovery which Petitioner is entitled to and sodesperately needs that Petitioner can not even wait, and with not even a wordin response to Plaintiff's grievance, as submitted in the Discovery Letter11 The Second Notice Regarding Submitted Discovery Letter Brief wasaddressed to ChiefMagistrate Judge Hon. Elizabeth D. Laporte, filed asinstructed by an email ofMs. Kristen Me len, Courtroom Deputy to ChiefMagistrate Judge Hon. Elizabeth D. Laporte, received on May 10 2013, oneday after the First Notice filed.

    Note that the First Notice was addressed to Hon. Magistrate JudgeDonna M. Ryu.12 The First Notice itself, or submitted again as Exh.F to the Second Notice,informed the district court that the reexamination was all over.

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    Brief (A 101):"Plaintiff is in desperate need of email addresses and/or other contact

    information of those third party developers so that Plaintiff can sendnotification of infringement to them, otherwise, Plaintiff will lose all right todamages from their past infringements, not to mention join them into theinstant suit, as calculation of past infringement liabilities and successfullyassertion of patent right in a complaint, require proof of prior knowledge ofthe patent as well as the application program they developed is infringingcontributorily."

    ARGUMENT

    A. PETITIONER HAS NO OTHER MEANS, SUCH AS AN APPEAL,TO OBTAIN THE DESIRED RELIEF

    This is a rare opportunity for patent litigants before the district courts toobtain this Court's useful guidance in the way urgent needs of discoveryshould be handled, when stay is imposed. As it is entirely within the

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    discretion of a district court to impose a stay 13 of all proceedings pendingreexamination of the patents-in-suit, a district court may easily issue a stayorder, then forgets the stayed case altogether.

    Petitioner is in such a situation that he cannot appeal, and can only resortto filing Notices Regarding Submitted Second Motion to Lift Stay, inpursuant to Civil L.R. 7-13 (see footnote 6 above) ofNorthem District ofCalifornia, however, after filing two such notices, in March and June 2013respectively, the district still as of to date has not acted on Petitioner 'sMotion (A67-73) filed in Sept. 2012, to lift the stay which was ordered(A47-55) in Oct. 2007.

    There is no reason for Petitioner to believe filing more notices wouldhelp.

    B. THE DISTRICT COURT'S DENIAL TO LIFT STAY ISCLEARLY ERRONEOUS AS A MATTER OF LAW

    Despite Petitioner's two Notices Regarding Submitted Second Motion13 Cherokee Nation ofOkla. v. United States, 124 F.3d 1413, 1416 (Fed. Cir.1997) ("When and how to stay proceedings is within the sound discretion ofthe trial court").

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    to Lift Stay A121-123, A129-132, the district as ofto date still fails to act onPetitioner's Second Motion to Lift Stay, is actually an act of denial to leavestay, and with an easily visualized fact that, this denial is without a reason.

    Otherwise, the district would have denied the motion using the reason ithad. It is a severe violation ofPetitioner's constitutional rights of access tojudicial process and the prohibition against immoderate and indefinite staysas set forth by the United States Supreme Court in Landis v. No. AmericanCo., 299 U.S. 248 (1936).

    Further, as mentioned by issue 1 above, the district court has actuallyexceeded the bounds of its authority and committed a clear abuse ofdiscretion, in granting a relief more than being sought.

    In the "Motion to Stay Proceedings Pending Reexamination ofU.S.Patent No. 6,665,797" (TSE I, Dkt. 78, A35-46), as is its title, it merelysought a limited stay, "Pending Reexamination", but now it is more than oneyear after the reexamination has completely finished. Here below is a trueimage of its "Summary ofReliefRequested" (A 37):

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    STATEMENTOF RELIEF REQUESTEDDefendants respectfully request that the Court stay these proceedings pending the

    resolution of the ex parte reexamination ofU.S. Patent No. 6,665,797 Patent by the United StatesPatent and Trademark Office.

    And, no other reexamination(s) or request for correction of claim errorsis pending.

    C. DISCOVERY ON APPLEEven if this Court is inclined to lift stay, it should not moot issue 3,

    which is for compel discovery on Apple, Inc. for information of inducedinfringement ofApple i tself and contributory infringement of third partyApp developers when stay is imposed, because after maintaining the stay for

    more than one year without a reason, the district court would most likelymake use of its wide discretion to stay the case once again, if a defendantfiles a request for another reexamination or correction of claim 23 with thePatent Office. 14

    14 Petitioner does not believe any future request for reexamination orcorrection of claim should affect the discovery sought, unless they cannot bemade earlier and would invalidate all claims asserted against defendants.This Court's guidance is respectfully requested.

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    This highly contested discovery dispute has been in limbo nearly oneyear, and causing irreparable harm to Petitioner. It would therefore be in theinterest of ustice for this Court to decide on it now, rather than in a futureappeal or petition.

    Here below are Petitioner's reasons for the discovery and its urgency :

    1. The Concept of InventionAs readable on the abstract of '797 patent A26, the concept behind the

    present invention can be summarized as a method of "using the existence ofthe EI sub-program in a computer as a precondition for authorising use ofsoftware products on that computer".

    And, the EI program is for authorizing payment from an account of therightful user of the software products desired to be protected, and in thepresent invention, it is being used as a token for identity verification only.

    No payment is needed to be charged on the account.Note that other payment information, such as a credit account password,

    may be used as an alternative to the EI program. For details, please refer to

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    the '797 Patent A25-34.The present invention is the cornerstone of Digital Rights

    Management ("DRM") technologies ofnowadays. Before it, purchasedsoftware is generally protected from unauthorized use, by means of a pieceof specific hardware, such as a dongle, not practical for Internet sales.

    2. Direct Infringement ofApple's App StoreThe following are real image of"COUNT I" ofComplaint (Dkt.l),"INFRINGEMENT OF U.S. PATENT NO. 6665797 BY APPLE'S APPSTORE AND PRODUCTS" , i n c l u d i n g ~ ~ 26-29 therein :

    26. Apple, through the virtual App ~ t o r e . has required/requires users to submitinformation of their financial account. to open accounts \Vith Apple. and each Apple account canhe accessed by using a respecrivt> Apple ID and Password. The financial account may be a credit

    c : . ~ r d or debit ~ C a r d account and the infi)fmation submitted is for authorizing Apple to receivt:pajment from the financial acct'tHlt.

    27. The Apple ID and Password is for use by an account holder to authorize Appk tomake use of the financial account information he/she submitted. to receive payment from his/herfinancial account. for purchasing application programs from the App Store.

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    28. Once an account holder has purchased an application program, he/she candownload the same application program from the App Store. to any Apple's products ("iPodTouches, iPhoncs and iPads"}, for an unlimited number of times without re-purchasing theapplication program, by first using the product to access the App Store, then signing up with theApp Store using the Apple ID and Password used for the purchase.

    29. The purchase-d App cannot be used on an Apple product (''iPod Touches, iPhonesand iPads'') other than the one used for making the purchase. unless the product is authorized toexecute the App, by fast using the product to access the App Store. then s1gmng up w1th the AppStore using the Apple ID and Password used for the purchase.

    3. Contributory Infringement ofApple's Third Party DevelopersThe following is real image "COUNT II" ofthe Complaint (Dkt.l), with

    ~ ~ 3 4 , 35 therein :

    COUNT IIAPPLE INDUCES THIRD PARTY APPLICATION PROGRAM DEVELOPERS

    INTO INFRINGING U.S. PATENT NO. 6665797

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    34. Apple, by using Digital Rights Management fORM) software and mt:thodscovered under the claims of the '797 patent, including but not limited to claims I3. 16 and 21. toprotect purchased application programs from use by an unauthorized user, Apple hasinfringed/infringing on the '797 patent directly i t s e l t ~ while at the same time, hasinduced/inducing the infringement of the '797 Patent by third party developers in the UnitedStates.

    35. Apple has solicited/solicits third party developers to submit App to its App Store.To this end. Apple has t1fTered/offers Software Development Kit to third part developers f()rdevcll)ping application programs for tt) be sold exclusively at Apple's App Stme and exenttableonly on Apple's products (including but not limited to "iPod Touches. iPhones and iPads").

    4. Dismissal ofAscedia, Inc. for Not Sufficient PleadingOriginally, Plaintiff included a third party application program

    developer Ascedia, Inc in the instant suit (refer to the Dkt.l, Complaint,COUNT III, "CONTRIBUTORY INFRINGEMENT OF U.S. PATENT NO.6665797 BY ASCEDIA") but was dismissed by the West Wisconsin DistrictCourt, before transferring the instant suit to the district court for N orthemCalifornia. The reason for dismissal ofAcedia, Inc. is, "Plaintiff states thathe is suing Ascedia for contributory infringement. However, contributoryinfringement applies to "cases in which a party sells a particular component

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    that is known to be intended or an infringing use and is useful only forinfringement." "These allegations [in the Complaint against Acedia, Inc.] donotpermit an inference that Ascedia was aware of he '797 patent or knewthat use of ts application programs with Apple's products would infringeplaintiff's patent." 15 (emphasis added)(A151-153; Case: 3:12-cv-00021-bbc, Document#: 29, P.8 last paragraph-P.9)

    5. Irreparable Harm to PetitionerTherefore, as petitioner submitted in "STATEMENT OF FACTS",

    P 17 last paragraph above, "Plaintiff is in desperate need of emailaddresses .. . of those third party developers so that Plaintiff can sendnotification of infringement to them, as ... successfully assertion of patentright in a complaint, require proof ofprior knowledge of the patent as wellas the application program they developed is infringing contributorily."

    15 Claims of contributory infringement under 35 U.S.C. 271(c) requires aplaintiff to prove that the defendant had knowledge of the patent(s) he wasinfringing. See Aro Mfg. Co. v. Convertible Top Replacement Co., 377 U.S.476, 488 (1964) (" 271(c) . . . equire[s] a showing that the allegedcontributory infringer knew that the combination for which his componentwas especially designed was both patented and infringing.").

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    This is an irreparable harm, and every day counts.

    6. Other Objections ofApple, Inc.In the Discovery Letter Brief(Dkt. 84, A99-106), P.4 (A103), second

    paragraph, Apple contended that the "customer suit doctrine" is to guardagainst the "the possibility of abuse" of targeting ancillary third parties,however, those third party App developers are not Apple's customers, evenif they were, the doctrine is not for barring a patentee from seeking damagesfrom any third party infringers, rather, it merely provides leeway for them tonot involve in an expensive litigation.

    Petitioner himself is a lone inventor, not interested in litigations at all,getting into such a difficult situation is the result of continued infringementand greediness ofdefendants. And most importantly, any litigation againstthe third party App developers would be stayed by the court, pendingoutcome of Apple's, except that some of them may have to act as witnessesof direct or induced infringement ofApple.

    Apple also inappropriately made use ofPatent Local Rule 2-2 Interim

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    Model Protective O r d e r , ~ 7.1 as a basis for objection, Here below is a realimage thereof :

    7.1 Basic Ptinciples. A Receiving Party may use Ptotected Material that is disclosed orproduced by another Pruty or by a Non-Party in collllection with this case only for prosecuting. defending,or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories ofpersons and under the conditions described in this Order. When the litigation has been terminated. aReceiving Pruty must comply \\'ith the provisions of section 15 below (FINAL DISPOSITION).

    And, the definition of "Protected Material" is found in 2.16 of theInterim Model Protective Order, here below is a real image thereof:

    2.16 Protected Material: ru1y Disclosure or Discovery Material that is designated as''CONFIDENTIAL." "HIGHLY roNFIDENTIAL- ATTORNEYS' EYES ONLY." or "HIGHLYCONFIDENTIAL- SOURCE CODE."'

    As 7.1 is directed to protected material, and the contact information of

    the third party developers that Petitioner seeks should not be designated as"protected material", as most ofthose third party developers should be smallbusinesses with their contact information, including physical addresses beregistered with a governmental agency. Take Apple, Inc. as an example, it isregistered with the California Secretary of State, and its contact informationis accessible at Secretary of State's website, http://www.sos.ca.gov, asfollows:

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    APPLE INC.(080659201/03/1977ACTIVECALIFORNIA1 INFINITE LOOPCUPERTINO CA 95014C T CORPORATION SYSTEM818 WSEVENTH STlOS ANGELES CA 90017

    Even though it looks simple, if the target company is not Apple, but avery small one few people know, then one would have to search businessrecords from one state to another, and would probably end up with a long listof companies with very similar names, without knowing which is the realone or even the real one is in the list or not, as it may be outside USA.

    As to Apple's objection "to this request [for document production] tothe extent it seeks a 'list' that Apple does not create in the ordinary courseofbusiness" (Exhibit to Discovery Letter Brief (Dkt. 84-1 ), A 106, lastparagraph) (emphasis added), it is a blatant lie. Petitioner has downloadedwithout difficulty from many different Internet sources, reports on Apple'semails to third party App developers on May 9, 2013, and Petitionersubmitted the district court some ofthem as Exh.A-D (A138-148) to first

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    Notice Regarding Submitted Discovery Letter Brief(A122-148), eachevidencing Apple routinely sends business emails to all of its third party Appdevelopers.

    Apple objected Request for Production of Documents 3 (A 96) as"harassing", as one would anticipate. Therefore, in the paragraphimmediately following Request for Production of Documents 3, Petitionerhas a proposal (A 97) for Apple:

    Should Apple have any problem with the request, kmdly let me know me munediately.And as an altemative. Plaintiff will be very happy to reach an agreement with Apple on thcontent of notification of infringement, and would even allow Apple to send the notifications oinfringement on Plaintiff's behalf, so that Apple would not need to reveal Plaintiff emaiaddresses of those third party developers.

    In what way a global technology leader wants to build up or ruin itsimage is nothing Petitioner can help, and therefore, Petitioner forgot tosuggest, the proposal was in fact open an opportunity for Apple toaccompany a letter of its own with Petitioner's notices of infringement, toexplain why it is being accused of stealing other's intellectual property,rather than after damage is done. It would not be harassing, nor embarrassing

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    to Apple. ifwhatApple has done is as a matter of fact concionable16What Petitioner seeks is merely a discovery on Apple he is entitled to.

    CONCLUSION

    For the foregoing reasons. Petitioner respectfully requests that this Courtgrant this petition for a writ ofmandamus, order the district Court to rectifYall the above errors and injustices it has done.

    Dated: Sept I7. 20 13 Respectfully submitted./] .10/t t ~ : ~P.O. Box 80306Cheung Sha Wan Post OfficeHong [email protected] Se

    16 After more than seven years filing suit, in Jan. 2013, it happened thatPetitioner had an opportunity to make a call and talk with an Attorney ofApple, Inc., Ms. Sarita P. Venkat, but she told Petitioner that "797 patent wasworth nothing, because of the stay.Apparently, she knew the district court would never lift stay.

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    CERTIFICATE OF SERVICEI hereby certify that on Sept 17, 2013, I caused an original and four true andcorrect copies ofthe PETITION FOR WRIT OF MANDAMUS OF HOKEUNG, TSE. and the APPENDIX TO THE PETITION FOR WRIT OFMANDAMUS OF HO KEUNG, TSE, to be served on the Clerk of theUnited States District court of Appeals for the Federal Circuit and further

    certify that I caused the following individuals to be served with a true andcorrect copy of the foregoing via Federal Express.

    Trial District court Judge:Senior District Judge Hon. Saundra Brown ArmstrongRonald V. Dellums Federal Building1301 Clay StreetOakland, CA 94612Suite 400 S510-637-3530 (Clerk's Office)Counsel for Apple, Inc. :Michael A. Jacobs (CA SBN 111664)[email protected] S.J. Hung (CA SBN 197425)[email protected] C. Ho (CA SBN 257426)[email protected] & FOERSTER LLP

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    425 Market StreetSan Francisco, California 94105-2482Telephone: (415) 268-7000Facsimile: (415) 268-7522

    Counsel for MusicMatch, Inc. :DOUGLAS E. LUMISH (Bar No. 183863)[email protected] & WATKINS LLP140 Scott Drive Menlo Park, California 94025 Telephone (650) 328-4600Facsimile (650) 463-2600Patricia Young (admitted pro hac vice)[email protected], BENSON, TORRES &FRIEDMAN LLP333 Twin Dolphin Drive, Suite 200Redwood Shores, CA 94065Telephone: (650) 453-5410Facsimile: (650) 362-9328

    Counsel for Sony Network Entertainment Int'l LLC. :FrankL. Bernstein (CA SBN 189504)[email protected] & KENYON LLP1801 Page Mill Road, Suite 210Palo Alto, CA 94304-1216Telephone: (650) 384-4700Facsimile: (650) 384-4701John Flock (admitted pro hac vice)j [email protected]

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    Michelle Carniaux (admitted pro hac vice)[email protected] & KENYON LLPOne BroadwayNew York, NY 10004-1007Telephone: (212) 425-7200Facsimile: (212) 425-5288

    Respectfully submitted,

    ~ o.j,4 . : ~P.O. Box 80306

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    Cheung Sha Wan Post OfficeHong Kongtse20 [email protected]

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