Opinion
CASE NO. 6:06-CV-163.
September 10, 2007
MEMORANDUM OPINION AND ORDER
Before the Court are Nokia, Inc., Motorola, Inc., T-Mobile USA, Inc., Ericsson, Inc., Qualcomm Incorporated, and Lucent Technologies, Inc.'s (collectively "Defendants") joint motion for summary judgment (Docket No. 184) and Golden Bridge Technology, Inc.'s ("GBT") cross-motion for partial summary judgment (Docket No. 198). Having considered the relevant briefing, oral arguments, and the applicable law, the Court GRANTS Defendants' joint motion for summary judgment, DENIES GBT's cross-motion for partial summary judgment, and DENIES as moot all other pending motions (Docket Nos. 183, 193, 202, 204, 205, 206, 207, and 208).
BACKGROUND
Formed in 1995, GBT develops technology utilized in the wireless communications industry for Wideband Code Division Multiple Access ("WCDMA") systems. GBT owns patents related to wireless communications allegedly covering aspects of the 3GPP standard including Common Packet Channel ("CPCH") technology, which allows medium-sized packets of electronic information to be sent between a cellular phone and a base station. These patents improve the ability of WCDMA networks to efficiently communicate and transfer medium-size data packets with higher capacity and throughput.
U.S. Patent Nos. 6,574,267; 6,169,759 ("the `759 patent); and 6,301,286 ("the `286 patent). The `759 and `286 patents relate to the CPCH technology at issue.
Defendants and GBT are members of a non-profit standard-setting organization called Third Generation Partnership Project ("3GPP"). Five regional standard-setting organizations ("Organizational Partners") formed 3GPP in 1998 to institute uniform technology standards for telecommunications systems and equipment to ensure worldwide compatibility of WCDMA devices and systems, such as mobile phones and portable data transmission devices. 3GPP seeks to create an attractive standard for network operators and cell phone users. The 3GPP standards are developed in a phased approach called Releases.
Association of Radio Industries and Businesses, European Telecommunication Standard Institute, T1 (replaced by Alliance for Telecommunications Industry Solutions in April 2004), Telecommunications Technology Association, and Telecommunications Technology Committee. China Wireless Telecommunications Standard Group joined as an Organizational Member in May 1999.
3GPP is composed of representatives from wireless telecommunications companies ("Individual Members"). More than 260 Individual Members belong to 3GPP representing every level of the cell phone industry. Although Organizational Partners formed 3GPP, the Individual Members drive the development of the 3GPP standard.
A company registered as a member of an Organizational Partner and able to participate in an Organizational Partner's technical work can become an Individual Member of 3GPP.
The Project Coordination Group is at the top of 3GPP's structure and presides over six Technical Specification Groups, which are responsible for developing, approving, and maintaining the specifications under their control. The Technical Specification Groups are subdivided into areas of responsibility. The Radio Access Network — the only relevant Technical Specification Group in this dispute — has four Working Groups, each with different responsibilities related to the technical details of developing and implementing the 3GPP standard. The Working Groups propose changes to the 3GPP standard by submitting Change Requests to the other Working Groups. Approved Change Requests are then submitted to the Radio Access Network for decision.
3GPP encourages decision-making by consensus. A single Individual Member's sustained opposition prevents the approval of a proposed Change Request. When consensus cannot be reached, a supermajority of 71% of Individual Members at a subsequent plenary meeting is required to approve a Change Request. Technical decisions may be appealed to the Project Coordination Group.
GBT was a member of a U.S. standard setting body that made joint submissions in 1998 to 3GPP for the initial 3GPP standard — Release 99. CPCH was included in the submission to 3GPP. In 1999, GBT became an Individual Member of 3GPP and attended meetings to lobby for the inclusion of CPCH into the 3GPP standard. As a result of its efforts, CPCH was adopted by 3GPP as an optional feature in Release 99. Thus, cellular equipment manufacturers were not required to use CPCH, but if they chose to include the technology they had to comply with the CPCH standard set out by 3GPP.
Telecommunications manufacturers that implemented CPCH were not required by law to follow 3GPP standards. However, if a manufacturer implemented CPCH it would need to follow 3GPP standards to ensure that its equipment was compatible with other telecommunications equipment and networks.
At the March 2001 Radio Access Network plenary meeting, GBT submitted a proposal to make CPCH mandatory in Release 4. There was no consensus on GBT's proposal, and CPCH remained an optional feature for Release 99 and Release 4. GBT began discussions with several companies to secure licenses covering the CPCH technology. GBT secured two licenses covering CPCH. The licensees never field tested or implemented CPCH.
The Feature Clean-up List
At the December 2004 Radio Access Network plenary meeting, Individual Members sought simplification of the 3GPP standard. As a result, at the February 2005 Working Group meeting in Scottsdale, Arizona, Nokia and Motorola presented a feature clean-up list that proposed technologies for removal from Release 5. CPCH was not included on the proposed feature clean-up list. No decision was reached, and the Working Group continued the feature clean-up at the next plenary meeting. Following the Scottsdale Working Group meeting, Nokia circulated draft Change Requests via email to several companies concerning the feature clean-up list. After some discussion, Nokia declined to add CPCH to the feature clean-up list, concerned that its inclusion might prevent consensus.
In March 2005, the Radio Access Network held a plenary meeting in Tokyo, Japan. Defendants were all represented at this meeting. GBT no longer had a representative at the 3GPP meetings and did not attend. Nokia presented a feature clean-up list of eight technologies, which did not include CPCH. A Qualcomm representative suggested adding compressed mode by puncturing, to which there was no objection. An Ericsson representative suggested adding CPCH. In response to the proposal, Cingular's representative and Vice-Chair of the Radio Access Network stated publicly that Cingular had "been a champion of CPCH, but now we are willing to remove it from the specification." Toskala Dep. at 126:16-19, Joint Motion of Defendants for Summary Judgment, Exh. 2. There were no objections to CPCH being added to the feature clean-up list, and the discussion moved forward to other technologies.
Questions were then raised concerning the inclusion of other technologies to the feature clean-up list. Additionally, some Individual Members wanted to retain all the proposed features in Release 99 and Release 4 and only remove them from Release 5. The chairperson of the plenary meeting ended the discussion and asked Nokia to hold an offline session to obtain consensus on the unresolved items. The offline session was not recorded in the minutes of the official session.
On the final day of the plenary meeting, Nokia submitted a revised feature clean-up list. Compared to the initial feature clean-up list, the revised version also included compressed mode by puncturing, CPCH, and other technologies from some but not all uses, and proposed removal of the items only from Release 5. No one objected to the revised feature clean-up list. Having achieved consensus, Working Groups prepared Change Requests for each feature.
The Change Requests implementing the feature clean-up list were approved at the Working Group meeting in Athens, Greece in May 2005. GBT did not attend the Athens Working Group meeting. The Change Requests were then scheduled for a final vote at the June 2005 plenary meeting in Quebec. GBT informed the Radio Access Network chairperson that GBT would attend the June 2005 Quebec plenary meeting to discuss the inclusion of CPCH in the revised feature cleanup list. GBT registered for the Quebec plenary meeting but did not attend. At the Quebec plenary meeting, no one objected to any of the Change Requests, and all of the features on the revised feature clean-up list were removed from Release 5. GBT did not appeal CPCH's removal to the Project Coordination Group.
GBT filed this complaint on May 6, 2005 — before the June 2005 Quebec plenary meeting — alleging a violation of the Sherman Antitrust Act, 15 U.S.C. § 1 and state law claims for tortious interference with prospective economic advantage and unfair competition. GBT claims that Defendants conspired among themselves not to deal with GBT and to have CPCH removed from the 3GPP standard. GBT claims the removal of CPCH from Release 5 eliminated GBT's ability to market CPCH and excluded GBT and CPCH from the market by foreclosing the ability of telecommunications equipment manufacturers and network operators to implement CPCH. Defendants contend that they are entitled to summary judgment because there is no evidence of an antitrust conspiracy, GBT has not suffered any damages, and GBT's state law claims are similarly flawed.
APPLICABLE LAW
Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). An issue of material fact is genuine if the evidence could lead a reasonable jury to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue for trial exists, the court views all inferences drawn from the factual record in the light most favorable to the nonmoving party. Id.; Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).
If the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must assert competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations, unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). The party opposing summary judgment is required to identify evidence in the record and articulate the manner in which that evidence supports his claim. Ragas, 136 F.3d at 458. "Only disputes over facts that might affect the outcome of the suit under the governing laws will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Summary judgment must be granted if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
The Sherman Antitrust Act
Section 1 of the Sherman Act states that, "Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." 15 U.S.C. § 1. To establish a Section 1 violation, a plaintiff must prove that: (1) the defendants engaged in a conspiracy, (2) that restrained trade, (3) in the relevant market. Apani Sw., Inc. v. Coca-Cola Enter., Inc., 300 F.3d 620, 627 (5th Cir. 2002); Spectators' Commc'n Network v. Colonial Country Club, 253 F.3d 215, 220 (5th Cir. 2001); Johnson v. Hosp. Corp. of Am., 95 F.3d 383, 392 (5th Cir. 1996).
1. Conspiracy
Section 1 requires a conspiracy, a necessary element of which "is a showing of concerted action on the part of the defendants." Tunica Web Adver. v. Tunica Casino Operators Ass'n, ___ F.3d (5th Cir. Aug. 13, 2007), 2007 WL 2297464 at *3; Johnson, 95 F.3d at 392 ("Section one applies only to concerted action; unilateral conduct is excluded from its purview."). "There must be evidence that tends to exclude the possibility of independent action by [the defendants]. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the [defendants] had a conscious commitment to a common scheme to achieve and unlawful objective." Mosanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 765 (1984); Consol. Metal Prods., Inc. v. Am. Petroleum Inst., 846 F.2d 284, 294 n. 30 (5th Cir. 1988) ("[T]he plaintiff must show that there was single plan, the essential nature and general scope of which was known to those responsible for its implementation."). Direct evidence of concerted action "`explicitly refer[s] to an understanding between the alleged conspirators.'" Tunica, ___ F.3d at ___, 2007 WL 2297464 at *3 (quoting Viazis v. Am. Ass'n of Orthodontists, 314 F.3d 758, 762. (5th Cir. 2002)). Circumstantial evidence requires "additional inferences" to support a conspiracy claim. Id. "`Antitrust law limits the range of permissible inferences from ambiguous evidence in a Section 1 case'"; therefore, circumstantial evidence must be strong to allow a plaintiff to survive summary judgment. Id. (quoting Matsushita, 475 U.S. at 588). Conduct that is equally consistent with permissible competition and illegal conspiracy does not, by itself, support the inference of antitrust conspiracy. Id. The inference of conspiracy must be reasonable "`in light of the competing inferences of independent action or collusive action that could not have harmed' the plaintiff." Id. (quoting Matsushita, 475 U.S. at 588).
2. Unreasonably Restrained Trade
While Section 1 could be read to proscribe all contracts, it has never been interpreted literally and only proscribes those agreements that are unreasonable restraints on trade. See Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2712 (2007); Texaco Inc. v. Dagher, 547 U.S. 1, 5 (2006); Nw. Wholesale Stationers, Inc. v. Pac. Stationary Printing Co., 472 U.S. 284, 289 (1985); Consol. Metal Prods., 846 F.2d at 289. An unreasonable restraint of trade can be proven using either "the per se rule" or "the rule of reason." See Consol. Metal Prods., 846 F.2d at 289. Restraints that have "such a predictable and pernicious anticompetitive effect, and such limited potential for procompetitive benefit, . . . are deemed unlawful per se." State Oil Co. v. Khan, 522 U.S. 3, 9 (1997).
3. Relevant Market
A plaintiff alleging a Section 1 violation must prove an unreasonable restraint of trade occurred in a "particular market." See Spectators' Commc'n Network, 253 F.3d at 220. A relevant market has both geographic and product dimensions. Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732 F.2d 480, 487 (5th Cir. 1984).
ANALYSIS
To defeat this motion for summary judgment, GBT "must establish that there is a genuine issue of material fact as to whether [Defendants] entered into an illegal conspiracy that caused [GBT] to suffer a cognizable injury." Matsushita, 475 U.S. at 585-86.
Sherman Act Claim
GBT argues Defendants acted in concert with each other by voting and agreeing to remove CPCH from the 3GPP standard and that Defendants encouraged others to refuse to deal with GBT by eliminating CPCH as an optional feature from Release 5. Defendants contend the revised feature clean-up list served a legitimate purpose consistent with 3GPP's goal of removing features not being used in real networks and simplifying the 3GPP standard.
1. Conspiracy
After the Scottsdale working group meeting, Nokia began an email discussion seeking contributions to the feature clean-up list to avoid "another clean up later on." Nokia e-mail thread March 2, 2005. On March 3, 2005, an Ericsson representative suggested adding feature SF512 to the feature clean-up list. The Nokia representative, acting as coordinator of the feature clean-up list, questioned if SF512 was linked to CPCH, and if so, then "we might need to reconsider the removal of SF512." Nokia e-mail thread March 3, 2005. Ericsson's representative responded:
SF512 is obviously related to CPCH . . . once we list CPCH, we might risk that the whole effort is jeopardized. My proposal with just removing SF512 was a little more subtle way with a similar result. . . . I think we could also try to talk to Cingular next week and explain that this is not a coalition against CPCH, but rather a joint effort by the industry. . . . Forcing Cingular now to allow giving up the CPCH may be not [sic] a good way . . .
Nokia e-mail thread March 3, 2005. Nokia's representative responded "We would prefer to not propose the removal of SF512 in order to avoid endangering the whole process." Id. Ericsson's representative conceded and removed its suggestion of adding SF512 or CPCH to the feature cleanup list. Other companies included CPCH, SF512, and other technologies to their proposed feature clean-up lists, but likewise conceded their requests concerning CPCH and SF512 for consensus purposes. Nokia's representative distributed a proposed feature clean-up list for the upcoming plenary meeting and stated, "SF512 is needed for CPCH and therefore we are not very comfortable in proposing the removal of this feature. The proposal could endanger a good progress in this clean up process and we would not like to take that risk." Id. On March 4, 2005, Nokia's representative sent a final e-mail stating in relevant part:
As we are only proposing a removal of features, which are not used in real networks, and we are not proposing any implementation changes, this work should not by any means risk the stability of the specifications. Furthermore, by simplifying the specifications we expect that we are able to speed up the introduction of new features and completion of REL6 and future release specifications as discussed in the working group meetings.
Nokia e-mail March 4, 2005.
The email discussions following the Scottsdale working group meeting provide no evidence that Defendants had a "conscious commitment to a common scheme designed to achieve an unlawful objective." Monsanto Co., 465 U.S. at 768. GBT argues that "a plan was formed whereby CPCH would remain off the list and a stealth maneuver [would be] performed, at the opportune time, to facilitate removal." GBT's Resp. to Joint Motion for Summary Judgment at 2. But GBT does not provide evidence to support this argument. GBT describes Defendants' "orchestration of a plan" with "illicit exchanges" to "escape detection" as evidence of a common scheme against GBT. Id. at 23. But again, GBT provides only attorney argument and no evidence to support the allegations of a conspiracy by the Defendants. See Eason, 73 F.3d at 1325 (conclusory allegations and unsupported speculation are not competent summary judgment evidence).
The outcome of the emails evidence disagreement rather than agreement over proposing CPCH for removal from the 3GPP standard. Nokia's representative consistently responded that it did not want to add CPCH to the proposal. The email discussions show the failed attempt of one party to include CPCH in the feature clean-up list — not a conscious commitment by the Defendants to engage in a collective conspiracy against GBT.
GBT has presented no evidence to exclude the possibility that the alleged conspirators acted independently. See Consol. Metal Prods., 846 F.2d at 294 n. 30. The proposal to add CPCH to the feature clean-up list occurred in public at the Tokyo Radio Access Network plenary meeting. The representative from Ericsson who made the proposal to add CPCH to the feature clean-up list is the same representative who suggested in the email discussions to remove SPF15 as a "subtle way" to de-activate CPCH. Defendants offered evidence that the Ericsson representative acted independently and did not consult with any of the other alleged conspirators. See Beming Dep. at 101:15-19, 103:18-104:10, Defendants' Joint Motion for Summary Judgment, Exh. 12; Fernandes Dep. at 41:2-16, Exh. 13; Willenegger Dep. at 126:2-10, Exh. 4.
Furthermore, GBT has presented no evidence that Defendants agreed among themselves in an offline session conducted at the plenary meeting to remove CPCH from the 3GPP standard. GBT merely argues that an "unannounced attack on CPCH" occurred resulting in "modified documents" being created by the proponents of the deletion and therefore those proponents are part of the "conspiracy group." GBT's Resp. to Def. Joint Motion for Summary Judgment at 25. GBT has not pointed to any evidence to substantiate its argument; GBT again relies exclusively on attorney argument. More importantly, Defendants have presented evidence that CPCH was not even discussed at the offline session because there was already consensus on its inclusion in the feature clean-up list. See Toskala Dep. at 145:8-13, Joint Motion of Defendants for Summary Judgment, Exh. 2; Beming Dep. at 110:14-20, Exh. 12; Fernandes Dep. at 46:23-47:4, Exh. 13; Larbey Dep. at 128:15-17, Exh. 15. Far from being a conscious commitment to a scheme with an unlawful objective, the joint contribution of the revised feature clean-up list served a legitimate purpose consistent with 3GPP's goal of simplifying the 3GPP standard.
In addition to GBT failing to prove a conspiracy committed by Defendants, GBT has presented no evidence to suggest Defendants coerced other Individual Members to take any action against GBT. Defendants only refused to support CPCH. Prior supporters of CPCH — Samsung and Cingular — attended the plenary meeting and did not object to CPCH's inclusion on the revised feature clean-up list. Cingular publicly withdrew its support of CPCH at the plenary meeting.
Finally, Defendants did not control the process of features being removed from the 3GPP standard. There is no evidence that the removal of CPCH was performed differently from the standard process that led to the removal of other technologies at the plenary meeting. GBT could have attended the Athens Working Group or the Quebec plenary meetings and raised technical objections but did not. GBT had the right to submit contributions, raise objections, and force the proposed removal of CPCH from Release 5 to a vote but it took none of these actions. If any one of the Individual Members — including GBT — in attendance had objected to including CPCH on the revised feature clean-up list, that objection would have prevented consensus. GBT still could have objected at the following Athens Working Group meeting or at the Quebec plenary meeting where the Change Requests were approved without objection. GBT could have appealed CPCH's removal to the Project Coordination Group, but did not do so.
There is no evidence of a common scheme among Defendants to unlawfully deprive GBT of its rights in violation of the antitrust laws. Defendants' conduct merely reflects a standard-setting organization at work. GBT's evidence fails to show a conspiracy among Defendants, and summary judgment is warranted on this ground.
2. Unreasonably Restrained Trade
Although Defendants argue that the Court should apply the rule of reason rather than the per se rule in determining whether the alleged restraint of trade was unreasonable, the Court has already ruled that GBT pleaded a per se violation. Golden Bridge Tech., Inc. v. Nokia, Inc., 416 F. Supp. 2d 525, 529-32 (E.D. Tex. 2006) (Davis, J.) (order denying Defendants' motion to dismiss). Accordingly, this element would be satisfied if GBT had proved its conspiracy allegations.
3. Relevant Market
In its Complaint, GBT pled a geographical market, the entire world: "The 3GPP standards are intended to allow cellular phones which are compatible with these standards to be usable throughout the world, including within the United States." See Complaint, ¶ 22.
Earlier the Court found that GBT had alleged a sufficient relevant market in its Complaint to overcome a 12(b)(6) motion to dismiss, but the Court clearly stated "a definite understanding of the market is not clear at this point in the proceedings." Golden Bridge Tech., 416 F. Supp. 2d at 533. Since that time, GBT has not further defined the market, did not respond to Defendants' claim that GBT had not defined a relevant market, and has not presented any evidence of the relevant market in the summary judgment record.
A relevant market is a prima facie element of GBT's Section 1 claim. See Apani Sw., 300 F.3d at 627. GBT has failed to come forward with any evidence defining the relevant market. Accordingly, Defendants are entitled to summary judgment for GBT's failure to raise a fact issue as to this element of its claim.
Damages
GBT argues it does not have to prove that the "Defendants' wrongful actions were the sole proximate cause" of GBT's alleged injury. See Terrell v. Household Goods Carriers' Bureau, 494 F.2d 16, 20 (5th Cir. 1974). Defendants contend GBT must show as "a matter of fact and with a fair degree of certainty" that Defendants' conduct materially contributed to the injury. See id. Defendants argue GBT's injury is a result of GBT's failure to develop and market CPCH. Defendants further contend GBT never completed CPCH's development and CPCH was never field tested. Defendants argue GBT's alleged injury is purely speculative. See Bigelow v. RKO Radio Pictures, 327 U.S. 251, 264 (1964) (holding that a damage award may not be based on speculation or guesswork).
GBT has not shown it was damaged by CPCH's removal from the 3GPP standard. Although GBT's expert opines on CPCH's value, history does not support his opinions. While CPCH was in the 3GPP standard, GBT only licensed the technology to two companies, but neither company field tested or commercialized the technology or paid GBT any royalties. Accordingly, although CPCH has arguably been excluded from the market by no longer being included in the 3GPP standard, GBT has failed to show any damages caused by the exclusion. See Golden Bridge Tech., 416 F. Supp. 2d at 532. Moreover, as GBT has not shown that Defendants — apart from 3GPP — were responsible for CPCH's removal, Defendants could not have caused GBT's alleged damages. State Law Claims
Samsung apparently paid GBT an up front fee of $100,000, but did not pay any royalties based on usage.
In addition to the Sherman Act claim, GBT also brought state law tortious interference with prospective economic advantage and unfair competition claims against Defendants under the Court's supplement jurisdiction. See 28 U.S.C. § 1367(a). "When a court dismisses all federal claims before trial, the general rule is to dismiss any pendent claims." Bass v. Parkwood Hosp., 180 F.3d 234, 246 (5th Cir. 1999); see also Priester v. Lowndes County, 354 F.3d 414, 425 (5th Cir. 2004). Since the Court is dismissing GBT's federal claim on summary judgment, the Court declines to exercise supplemental jurisdiction over the remaining state law claims and dismisses those claims without prejudice.
CONCLUSION
Defendants did not engage in an antitrust conspiracy, but participated in the legitimate goal of simplifying the 3GPP standard. Further, GBT has failed to show that Defendants' conduct caused GBT any damages.
For the reasons discussed above, the Court GRANTS Defendants' joint motion for summary judgment, DENIES GBT's cross-motion for partial summary judgment, and DENIES as moot all other pending motions. The Court declines to exercise supplemental jurisdiction over the remaining state law claims. Accordingly, the remaining state law claims are DISMISSED without prejudice. Defendants are entitled to their costs as the prevailing parties.
The Court encourages the parties to review its recent opinions in Halliburton Energy Services, Inc. v. M-I, LLC, ___ F.R.D. ___ (E.D. Tex. June 20, 2007) (Davis, J.) (currently available at 2007 WL 1765642) and Maurice Mitchell Innovations, L.P. v. Intel Corp., 491 F. Supp. 2d 684 (E.D. Tex. June 20, 2007) (Davis, J.) regarding bills of costs. If, after reviewing the law as stated in those orders, there is any area of disagreement related to Defendants' Bills of Costs, the parties should meet, confer, and be prepared to compromise making every effort to submit an "agreed" bill of costs to the Court.