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

Filing 547

SUR-REPLY to Reply to Response to Motion re 431 SEALED MOTION - Defendants' Motion for Reconsideration and Objections to Memorandum Opinion and Order on Claim Construction (Dkt. No. 369) SEALED MOTION - Defendants' Motion for Reconsideration and Objections to Memorandum Opinion and Order on Claim Construction (Dkt. No. 369) filed by Bedrock Computer Technologies, LLC. (Cawley, Douglas)

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 BEDROCK'S SUR-REPLY IN OPPOSITION TO DEFENDANTS' MOTION FOR RECONSIDERATION AND OBJECTIONS TO MEMORANDUM OPINION & ORDER ON CLAIM CONSTRUCTION (DKT. NO. 431) Dallas 319073v1 I. ARGUMENT IN SUR-REPLY A. Defendants' Motion is Untimely. All parties agreed that the Court's Provisional Claim Construction Order ("Provisional Order"), and not the final Order, would dictate the filing deadlines for the following items: (1) Bedrock's P.R. 3-6 infringement contentions, (2) Defendants' P.R. 3-6 invalidity contentions, and (3) Defendants' objections to claim construction. Further, Bedrock agreed not to oppose the Defendants' request for an extension to lodge their objection. See Dkt. No. 332 (extending the Defendants' deadline to file objections to the Court's claim construction to December 3, 2010). The Defendants have had no reservations about enforcing this agreement. Indeed, Yahoo moved to strike Bedrock's infringement contentions as untimely. See Dkt. No. 400 (arguing that the deadline for 3-6 disclosures were keyed off the Provisional Order and that Bedrock's January 12, 2011 infringement contentions were served after that deadline). Had the parties agreed to have the deadlines keyed off of the final Order, Yahoo would have had no argument that the contentions were untimely. In sum, Defendants' attempt to now disavow the parties' agreement should be rejected, and their objections are late.1 B. "Removing . . . From the Linked List" Does Not Include Deallocation. Defendants' argument essentially asks the Court to disregard the statements within the '120 patent relied upon by Judge Love, which incontestably delineate the removal procedure, in favor of the portions of the specification cited by Defendants. Simply put, Defendants failure to demonstrate clear disavowal of claim scope or that Dr. Nemes acted as his own lexicographer Defendants' argument as to Judge Love's December 3, 1010 standing order is a red herring. Defendants cannot reasonably contend to have been relying on an order that was issued on the very day their objections were due. Further, given that the Defendants materially benefitted from the agreement--by receiving Bedrock's 3-6 contentions earlier than they would have without the agreement--the Defendants should not be allowed to use the standing order to disavow the agreement. 1 Dallas 319073v1 1 when drafting the preferred embodiments cited by Defendants precludes reliance upon such embodiments to limit the scope of the claims. See Dkt. No. 481 at 3-4. The Defendants again point to other portions of the specification that allegedly suggests that deallocation is an aspect of the removal procedure. But again, because Judge Love's construction relies upon the language in the specification which most squarely addresses this issue, which unequivocally states that "[t]he remove procedure causes actual removal of the designated element by adjusting the predecessor pointer so that it bypasses the element to be removed," '120:7:43-45, Judge Love correctly construed this claim term, and the Defendant cannot show clear error. C. "When the Linked List Is Accessed" Does Not Mean Traversal. Defendants contend that, because Bedrock has not "identif[ied] any other example of an `access' in the specification," the Court should adopt Defendants' proposed traversal limitation. On the contrary, it is Defendants' burden to show that Dr. Nemes "clearly expressed the intent [to assign to a term a unique definition that is different from its ordinary and customary meaning] in the written description." i4i Ltd. P'ship v. Microsoft Corp., 598 F.3d 831, 843 (Fed. Cir. 2010). Defendants have not met and cannot meet that burden. D. "Dynamically Determining" Does Not Encompass a Temporal Limitation. Because Defendants' argument that the dynamic determination must occur before the linked list is accessed finds no support in the claim language or specification, Defendants again resort to unsupported attorney argument. Such argument, however, cannot establish that Judge Love's construction is clearly erroneous or contrary to law, especially in light of the fact that Judge Love's construction is supported by the claim language and the specification. See Dkt. No. 481 at 6-7. 2 Dallas 319073v1 E. "Maximum Number" Does Not Mean a Single Number. Defendants wholly fail to address the discussion within the `120 specification which makes clear that the alternative method of on-the-fly garbage removal allows for the removal of all, none, or some of the expired records. See `120 patent at 6:66-7:15. Instead, Defendants reassert their prosecution history argument without even attempting to show that Dr. Nemes acted as his own lexicographer in overcoming the prior art. Dkt. No. 520 at 4. In doing so, Defendants effectively ignore their burden to demonstrate as much. See Helmsderfer v. Brobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008). As such, Defendants cannot reasonably contend that Judge Love's construction is clearly erroneous or contrary to law. F. "Automatically Expiring" and "Expired" Do Not Require That the Record Be Compared to an External Condition. Defendants point to Judge Love's construction, which rejects Defendants' attempt to read in the "external condition" language proffered by Defendants but incorporates other language from the specification, as inconsistent. However, Defendants' argument confuses Judge Love's refusal to limit the claim scope by improperly incorporating preferred embodiments with his attempt to read the claims "in view of the specification," which Defendants have consistently advanced as the correct approach. See Dkt. No. 520 at 2. Although conflated by Defendants, these are two entirely independent considerations. See Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005); i4i, 598 F.3d at 843. II. CONCLUSION. For the reasons in Bedrock's response and sur-reply, Defendants' Motion for Reconsideration should be denied in its entirety. 3 Dallas 319073v1 DATED: March 7, 2011 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 Scott W. Hejny Texas Bar No. 24038952 shejny@mckoolsmith.com Jason D. Cassady Texas Bar No. 24045625 jcassady@mckoolsmith.com J. Austin Curry Texas Bar No. 24059636 acurry@mckoolsmith.com Phillip M. Aurentz Texas Bar No. 24059404 paurentz@mckoolsmith.com Stacie Greskowiak Texas State Bar No. 24074311 sgreskowiak@mckoolsmith.com Ryan A. Hargrave Texas State Bar No. 24071516 rhargrave@mckoolsmith.com McKOOL SMITH, P.C. 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: 214-978-4000 Facsimile: 214-978-4044 4 Dallas 319073v1 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 5 Dallas 319073v1 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 7th day of March, 2011. /s/ Ryan A. Hargrave Ryan A. Hargrave 6 Dallas 319073v1