Yesterday Judge Whyte entered a post-trial scheduling order setting briefing and hearing dates for post-trial motions as well as Realtek’s request to permanently enjoin LSI “from enforcing, or seeking to enforce, any exclusion order or injunction that Defendants [LSI] might obtain with regard with regard to the ’958 and ’856 patents [LSI's WiFi SEPs at issue] until Defendants have made a RAND offer to Realtek consistent with the RAND royalty determined at trial” (see pages 27-28 of Realtek’s Trial Brief).  Opening briefs are due March 28, 2014 and the hearing is scheduled for May 9, 2014.

Recall that Judge Whyte already entered a preliminary injunction ruling in this case to bar Realtek from enforcing any exclusion order or injunction entered on these WiFi SEPs until LSI made a RAND offer to Realtek consistent with the court determined RAND rate, noting that the injunction only goes into effect if an exclusion order or injunction were granted (see our May 21, 2013 post).  A recent jury verdict also determined a RAND royalty rate (see our Feb. 27, 2014 post).  And the ITC recently terminated the LSI v. Realtek infringement investigation on various grounds for these same WiFi SEPs without entering an exclusion order (see our Mar. 5, 2014 post).

LSI appealed Judge Whyte’s preliminary injunction ruling to the Ninth Circuit.  The Ninth Circuit recently entered an Order taking the oral argument off calendar (it had been scheduled for today) and asking the parties to file supplemental letter briefs “limited to the question whether the preliminary injunction has by its own terms become moot as a result of the March 4, 2014, decision of the United States International Trade Commision.”  The parties appear to agree that the ITC decision does not moot the appeal because, among other things, appeal of that ITC decision potentially could lead to reversal and an exclusion order entered on remand (see LSI’s Letter Brief and Realtek’s Letter Brief).

There may be substantial overlap between the issues for the preliminary injunction appeal and the permanent injunction motion that Judge Whyte will consider.  Judge Whyte’s ruling on the permanent injunction motion probably will moot the preliminary injunction being considered by he Ninth Circuit because he may either deny injunctive relief or replace the preliminary injunction with a permanent injunction.  So it will be interesting to see whether the Ninth Circuit or Judge Whyte will issue a decision first, which first decision from one will guide or moot a later decision by the other.