Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 323

NOTICE by Bedrock Computer Technologies, LLC NOTICE OF COMPLIANCE REGARDING COURT'S ORDER TO MEET AND CONFER REGARDING CLAIM CONSTRUCTIONS (Cawley, Douglas)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER TECHNOLOGIES LLC, Plaintiff, v. SOFTLAYER TECHNOLOGIES, INC., et al. Defendants. CASE NO. 6:09-cv-269-LED Jury Trial Demanded PLAINTIFF BEDROCK COMPUTER TECHNOLOGY LLC'S NOTICE OF COMPLIANCE REGARDING COURT'S ORDER TO MEET AND CONFER REGARDING CLAIM CONSTRUCTIONS Plaintiff Bedrock Computer Technologies LLC ("Bedrock") hereby notifies the Court that it has complied with the Court's order on October 7, 2010 during the Markman hearing that parties meet and confer regarding the construction of "dynamically determining" term and advise the Court regarding any agreement over particular constructions. On October 21, 2010, counsel for Bedrock, Amazon, Softlayer, Yahoo, MySpace, and AOL met and conferred to discuss potential constructions for certain claim terms within claims 4 and 8 of the patent subject to construction: U.S. Patent No. 5,893,120. On the phone were Austin Curry for Bedrock, Russ Korn and Dru Montgomery for Softlayer and Amazon, and Marissa Ducca for MySpace and AOL. During the call, the parties discussed two proposed constructions that are not briefed before the Court. The first construction conferred by the parties was Defendants' proposed construction that includes the following language: "where the determination is based on factors such as how -1Dallas 311299v1 much memory is available in the system storage pool, general system load, time of day, and the number of records currently residing in the information system." Bedrock expressed that it does not oppose this additional language so long as the examples given are not an exhaustive list of the factors that could be used in making a dynamic determination. The second construction conferred by the parties was Bedrock's proposed construction of an ordering of the steps of claim 3 with respect to claim 4 and the steps of claim 7 with respect to claim 8. (Claims 4 and 8 are dependent on method claims 3 and 7 and therefore require the performance of an additional step.) Specifically, Bedrock proposed the following constructions for the ordering of these method steps: The step of method claim 4 is performed before the "removing" step of claim 3 that is the object of the determination, and the step of method claim 8 is performed before the "removing" step of claim 7 that is the object of the determination. Bedrock proposed this as a compromise to the Defendants' construction for "dynamically." During the Markman proceedings, the Defendants advocated for construing "dynamic" to mean "prior to traversing the linked list" based on the logic that the "determining" of claims 4 and 8 must perform before the "accessing" step of claims 3 and 7. Logic only demands, however, that the "determining" step be performed before the "removing" step that is the object of the determination. As the Defendants rejected Bedrock's proposed compromise, the following table reflects the parties respective proposed constructions: -2Dallas 311299v1 Disputed Claim Terms 4. The method Defendants propose according to claim 3 that the entire step further including needs construction. the step of Bedrock proposes dynamically that the term determining maximum number "dynamically" needs construction of expired ones of the records to as well as the ordering of the steps remove when the linked list is of claims 4 and 8 with respect to accessed. claims 3 and 7. 8. The method according to claim 7 further including the step of dynamically determining maximum number of expired ones of the records to remove when the linked list is accessed. Claims Defendants' Proposed Construction Immediately before the linked list is traversed, determining a single number that serves as an upper limit on the number of records to remove while the linked list is traversed OR Prior to traversing the linked list, determining a single quantity that serves as an upper limit on the number of expired records to remove, where the determination is based on factors such as how much memory is available in the system storage pool, general system load, time of day, and the number of records currently residing in the information system. Bedrock's Proposed Construction "dynamically" means "during program execution" Ordering of the Steps: The step of method 4 is performed before the "removing" step of claim 3 that is the object of the determination. The step of method 8 is performed before the "removing" step of claim 7 that is the object of the determination. -3Dallas 311299v1 DATED: October 22, 2010 Respectfully submitted, McKOOL SMITH, P.C. /s/ Douglas A. Cawley Sam F. Baxter Texas Bar No. 01938000 McKOOL SMITH, P.C. sbaxter@mckoolsmith.com 104 E. Houston Street, Suite 300 P.O. Box 0 Marshall, Texas 75670 Telephone: (903) 923-9000 Facsimile: (903) 923-9099 Douglas A. Cawley, Lead Attorney Texas Bar No. 04035500 dcawley@mckoolsmith.com Theodore Stevenson, III Texas Bar No. 19196650 tstevenson@mckoolsmith.com Jason D. Cassady Texas Bar No. 24045625 jcassady@mckoolsmith.com J. Austin Curry Texas Bar No. 24059636 acurry@mckoolsmith.com McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: 214-978-4000 Facsimile: 214-978-4044 Robert M. Parker Texas Bar No. 15498000 Robert Christopher Bunt Texas Bar No. 00787165 PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: 903-531-3535 Facsimile: 903-533-9687 E-mail: rmparker@pbatyler.com E-mail: rcbunt@pbatyler.com ATTORNEYS FOR PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC -4- Dallas 311299v1 CERTIFICATE OF SERVICE I hereby certify that all counsel of record who are deemed to have consented to electronic service are being served with a copy of the forgoing document via the Court's CM/ECF system pursuant to the Court's Local Rules this 22nd day of October, 2010. /s/ J. Austin Curry J. Austin Curry -5Dallas 311299v1