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Financeware, Inc., D/B/A Wealthcare: Capital Mangement and Wealthcare v. Ubs Financial Services

December 7, 2011

FINANCEWARE, INC., D/B/A WEALTHCARE: CAPITAL MANGEMENT AND WEALTHCARE CAPITAL MANAGEMENT IP, LLC, PLAINTIFFS,
v.
UBS FINANCIAL SERVICES, DEFENDANT.



The opinion of the court was delivered by: John F. Keenan, United States District Judge:

Memorandum

Opinion and Order

Before the Court is PIETech Inc.'s ("PIETech") motion to intervene in this patent infringement action. The instant motion addresses four issues: (1) the scope of intervention of the third party, PIETech; (2) discovery deadlines; (3) the timing for claim construction; and (4) the timing for addressing Defendant's counterclaim of unpatentability.

I. Background

The following facts are taken from the Complaint, unless otherwise noted. On July 27, 2010, Financeware, Inc. d/b/a Wealthcare Capital Management and Wealthcare Capital Management IP ("Wealthcare" or "Plaintiff"), obtained a patent from the United States Patent and Trademark Office for a "Method and System for Financial Advising" ('138 Patent). On August 2, 2010, Wealthcare obtained a second patent for another system by the same name ('675 patent).

According to Wealthcare, UBS Financial Services ("UBS" or "Defendant") has been infringing on the above-described patents to provide financial planning advice to its clients. Wealthcare alleges that UBS uses a software program called MoneyGuidePro to implement the two patented inventions. As a result, Wealthcare asserts, the financial planning advice and reports created by UBS are derived from systems that were patented by Wealthcare.

Wealthcare seeks a permanent injunction and an award of damages. UBS denies the allegations and has asserted counterclaims for declaratory judgment that Wealthcare's patents are invalid or, alternatively, that it has not infringed on the patents (Am. Ans. ¶¶ 1-20).

PIETech manufactures, distributes, and sells MoneyGuidePro (Def. and PIETech Mem. at 3). It has indemnified Defendant UBS against liabilities, claims, damages, and legal costs -- the two parties also share the same counsel. PIETech has moved to intervene as a matter of right under Rule 24(a)(2) or permissively pursuant to Rule 24(b)(1)(B) (Id. at 4). Wealthcare does not oppose PIETech's intervention, but requests that the Court limit the scope of PIETech intervention to include only the UBS software (Pl. Mem. at 1).

Additionally, UBS and PIETech have urged that discovery should be closed on September 21, 2012 (Def. and PIETech Mem. at 8). Wealthcare opposes this date only if PIETech's intervention is limited, in which case Wealthcare requests a discovery deadline of April 9, 2012 (Pl. Mem. at 2-3).

The parties also disagree on the timing of a Markman Hearing, pursuant to Markman v. Westview Instruments, 517 U.S. 370 (1996). UBS and PIETech request that the Hearing be held in the middle of the case. Under this proposed plan, claim construction issues would be fully briefed by June 8, 2012, with the Hearing shortly thereafter (Def. and PIETech Mem. at 9). Wealthcare requests that the Hearing take place at the end of the case (in conjunction with summary judgment motions) (Pl. Mem. at 3).

Finally, the parties disagree about the timing for resolving UBS's counterclaim that Wealthcare's patents are invalid. UBS and PIETech assert that the claim should be decided immediately after the Markman Hearing (Def. and PIETech Mem. at 9). To that end, it has proposed separate, expedited expert discovery on the issue of patentability (Id. at 10). Wealthcare opposes this schedule, submitting that patentability should be addressed over the normal course of litigation (Pl. Mem. at 4).

II. Discussion

The instant motion involves matters that lie within the Court's discretion. The parties agree that PIETech's intervention is procedurally proper, so the single issue is whether to limit the intervention, which the Supreme Court has deemed a matter for district courts to decide. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 378 (1987) (holding that courts may impose limitations on any intervention, permissive or as of right); Chevron Corp. v. Donziber, No. 11 Civ. 0691, 2011 WL 2150450, at *5 (S.D.N.Y. May 31, 2011). Additionally, scheduling a claim construction hearing, setting deadlines for discovery, and deciding when to determine the validity of a patent ...


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