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Cox Communications Inc. v. Sprint Communications Company, L.P.

United States District Court, D. Delaware

October 26, 2017

COX COMMUNICATIONS INC., et al., Plaintiffs,


          Joseph F. Bataillon Senior United States District Judge

         At Wilmington this 26th day of October, 2017, having reviewed Sprint Communications, LP's (“Sprint's”) motion to establish the order of proof at trial and to align the parties, (D.I. 641), and the briefs, (D.I. 642, 651, 656), submitted therewith; IT IS ORDERED that said motion is granted, as follows.

         1. Background.

         On December 19, 2011, Sprint filed suit in the District of Kansas (the “Kansas litigation”) against several Cox entities, [1] alleging infringement of twelve patents (the “patents-in-suit”) related to the transmission of voice communications over packet networks. Four months later, on April 16, 2012, plaintiffs[2] (“Cox”) filed this declaratory judgment action regarding the same patents-in-suit. (D.I. 1 at ¶¶ 42-53) Sprint has maintained, against other defendants, three separate cases in the District of Kansas involving the same patents-in-suit: Sprint Communications Co. v. Comcast Cable Communications, LLC, No. 11-02684; Sprint Communications Co. v. Cable One, Inc., No. 11-02685; and Sprint Communications Co. v. Time Warner Cable Inc., No. 11-02686.

         2. Cox moved to transfer the Kansas litigation to Delaware, which Judge Julie A. Robinson granted on September 14, 2012, finding that Kansas did not have personal jurisdiction over one of the Cox defendants, namely Cox Communications, Inc. Sprint Commc'ns Co. v. Cox Commc'ns, Inc., No. 11-2683, 2012 WL 4061509, at *16 (D. Kan. Sept. 14, 2012). Subsequently, Sprint agreed to have their first-filed[3] case merged into Cox's later-filed declaratory judgment action. (D.I. 642 at 1) Sprint has moved on several occasions to transfer this consolidated matter back to Kansas, (D.I. 43, 508), but this court has denied these motions, (D.I. 76, 603), noting that Sprint's Kansas cases was first-filed, (D.I. 76 at ¶ 7 n.4), but that “exceptional circumstances” warranted departure from the first-to-file rule, (id. at ¶ 7).

         3. At this point, Sprint alleges that Cox infringes claims of the patents-in-suit, which are U.S. Patent Nos. 7, 286, 561 (“the ‘6, 561 patent”), 6, 633, 561 (“the ‘3, 561 patent”), 6, 463, 052 (“the ‘052 patent”), and 6, 452, 932 (“the ‘932 patent”) (collectively the “Call Control Patents”) and U.S. Patent Nos. 6, 473, 429 (“the ‘429 patent”), 6, 343, 084 (“the ‘084 patent”), and 6, 298, 064 (“the ‘064 patent”) (collectively the “Broadband Patents”). Aside from Cox's defenses to infringement (namely invalidity and noninfringement), there are no other claims at issue. Moreover, the parties do not dispute that Sprint bears the burden of proving infringement and that Cox bears the burden of proving noninfringement and invalidity. See, e.g., (D.I. 651 at 9- 11); see also Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S.Ct. 843, 849 (2014) (“[I]n a [] declaratory judgment action, the burden of proving infringement should remain with the patentee.”).

         4. Sprint argues that, since it filed first in Kansas on these patents-in-suit and since it is asserting patent infringement, the parties should be realigned so that Sprint is the plaintiff. (D.I. 642 at 1-2) Also, Sprint proposes the following “order: (1) Sprint puts on its infringement and damages case, (2) Cox rebuts Sprint's presentation and puts on its invalidity case, and (3) Sprint rebuts invalidity.” (Id. at 1)

         5. Cox contends that Sprint sought to “gerrymander[] its Kansas pleadings in an attempt to create an incomplete lawsuit that could be heard in Kansas[.]” (D.I. 651 at 4) Additionally, Cox avers that the present action in Delaware was necessary to “determine the rights of all the Cox plaintiffs[.]” (Id.) Cox offers that it “is willing to streamline the issues for the jury by conceding at trial on the issue of infringement as to the [Call Control Patents.]” (Id. at 9) Cox then explains that, as to the Broadband Patents, “Cox will retain the burden on any invalidity issues that are tried, but, while Cox intends to contest infringement on the [Broadband Patents'] claims, Cox does not propose to displace Sprint from presenting first on infringement for of the [Broadband P]atents, because that is an issue on which Sprint carries the burden.” (Id. at 11) Cox proposes the following order of proof at trial:

• Cox will present its case-in-chief, explaining the patents, their technology, and the evidence on invalidity.
• Sprint will follow with its:
• Response to Cox's invalidity claims; and its
• Case-in-chief on infringement and damages
• After Sprint presents its case, Cox will present its rebuttal case, responding to Sprint's infringement ...

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