July 2020 – What Matters?

As this patent litigation wends its way — at a truly glacial pace — onward, parts of it are now (as we’ve previously reported) in mandatory mediation — while other parts continue to be the subject of federal motion practice.

On Friday, we learned that CallMiner will amend its patent answers, to NICE/Mattersight’s infringement complaint, to assert another of its own patents, as a counter-claim — saying Mattersight itself infringes it. An answer, or non-opposition, to this motion is now due in court on August 8, 2020.

More specifically, CallMiner now understands that Mattersight’s business methods may well infringe CallMiner’s so-called ‘056 patent, thus:

“…Defendant CallMiner, Inc. (“CallMiner”) respectfully moves for leave to amend its Supplemental Answerto Plaintiffs NICE Ltd., NICE Systems Inc., and Mattersight Corp.’s (collectively, “NICE’s”) First Amended Complaint, Affirmative Defenses, and Counterclaims (D.I. 39) to assert a counterclaim that NICE infringes U.S. Patent No. 10,582,056 (the “’056 patent)….

On July 22, CallMiner counsel informed NICE counsel that it intended to file a motion to amend its counterclaims to assert the ‘056 patent. CallMiner provided NICE with a detailed claim chart, a red-lined copy of the amended pleading it planned to file, and a copy of the new patent it intended to assert. CallMiner requested the courtesy of NICE’s position regarding CallMiner’s forthcoming motion by the close of business on July 23. After the close of business on July 23, NICE counsel informed CallMiner that counsel had not conferred with NICE and would not be able to confer with NICE until the week of July 27.
Notwithstanding the fact that NICE contemplated the possibility of the parties both amending pleadings to add patents, NICE counsel indicated on July 23 that “it has had insufficient time to consider this motion and plans to decide next week whether it will oppose….”