Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al
RESPONSE in Opposition re 665 Opposed SEALED MOTION for Clarification and Reconsideration filed by Bedrock Computer Technologies, LLC. (Attachments: # 1 Text of Proposed Order)(Cawley, Douglas)
Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al
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 RESPONSE IN OPPOSITION TO AOL'S MOTION FOR CLARIFICATION AND RECONSIDERATION OF JUDGE LOVE'S ORDER DENYING SUMMARY JUDGMENT [DKT. NO. 665]
INTRODUCTION After submitting both summary judgment and Daubert letter briefs, a motion for
summary judgment of non-infringement, and an emergency motion for leave to file a motion for summary judgment of non-infringement on this issue, AOL again asks the Court to rule as a matter of law that infringement of a system claim must be proven by evidence of actual use. Dkt. No. 665 ("Motion"). Because AOL has not presented any new argument and relies upon an erroneous interpretation of the law, Bedrock respectfully requests that AOL's motion be denied. II. ARGUMENT A. AOL Presents No New Arguments.
AOL now presents for the fifth time its flawed argument that infringement of a system claim must be proven by evidence of actual use. January 12, 2011: AOL first raised its erroneous position regarding infringement of system claims, citing the ACCO1 and Typhoon Touch2 cases,3 in a letter brief requesting leave to file a motion for summary judgment of non-infringement. See Dkt. No. 378 ("ACCO Brief 1"). The Court denied AOL's request in its February 1, 2011 Order. See Dkt. No. 450. The Court, however, permitted the Defendants to file a motion of noninfringement. See id.
ACCO Brands, Inc. v. Micro Sec. Devices, Inc., 346 F.3d 1075 (Fed. Cir. 2003).
Typhoon Touch Techs. v. Dell, Inc., Case 6:07-cv-00546, 2009 WL 2243126 (E.D. Tex. July 23, 2009). Bedrock's arguments responding to the reliance upon claim construction opinions in support of this non-infringement argument were fully detailed in its answering letter brief in opposition to the Defendants' letter brief requesting permission to file a Daubert challenge against Dr. Jones. Dkt. No. 517. 1
Dallas 320947v1 3
February 8, 2011: Despite the Court's denial of AOL's request to file a motion for summary judgment, the Defendants included this argument (again relying on the ACCO/Typhoon cases) in the Defendants' Motion for Summary Judgment of NonInfringement. See Dkt. No. 463 at 26-27 ("ACCO Brief 2"). February 14, 2011: AOL recast its ACCO/Typhoon argument as a Daubert challenge against Bedrock's expert. See Dkt. No. 484 ("ACCO Brief 3"). February 16, 2011: During the status conference, after having already received
Defendants' Daubert letter brief, the Court made clear that AOL must show "new" grounds for summary judgment in its motion for leave. February 22, 2011: AOL filed an emergency motion for leave to file a motion for summary judgment of non-infingement, Dkt. No. 505, which asked the Court to accept its already-filed motion where AOL again briefed its erroneous ACCO/Typhoon argument, Dkt. No. 507 ("ACCO Brief 4"). March 2, 2011: The Court denied both the Motion for Leave and the Motion for Summary Judgment, explaining that "the Court sees no need for another motion on the issue." Dkt. No. 539. March 28, 2011: AOL filed the Motion at hand, Dkt. No. 665 ("ACCO Brief 5"), which asks the Court to clarify and reconsider its order denying AOL's fourth attempt to resurrect this argument. Unfathomably, AOL contends that this Court has not sufficiently rejected AOL's contention that capability to perform the functional limitations is insufficient to establish infringement of a system claim and requests clarification on this issue. However, this is now the fifth time AOL has raised this exact issue. This Court should not be required to waste its limited
resources analyzing this issue again. See Retractable Techs. v. New Med. Techs., No. 4:02-CV34, 2004 U.S. Dist. LEXIS 3855, at *28 (E.D. Tex. Jan. 8, 2004) (Davis, J.) (refusing to "indulge [Defendant's] request for duplicative analysis"). For this reason, alone, AOL's motion should be denied in its entirety. B. Evidence of Use Is Not Required to Establish Infringement of a System Claim.
AOL contends that "any other conclusion other [sic] than the requirement that the functional limitations of the claim be performed flies in the face of basic tenants of patent law." MOTION at 6. This is an incorrect interpretation of the controlling law. Rather, claims governed by 35 U.S.C. § 112 ¶ 6 are construed to "cover the corresponding structure, material, or acts described in the specification and equivalents thereof," and the Court has construed the meansplus-function claims in this case to cover the algorithms disclosed in the patent. See Dkt. No. 369. Thus, to prove infringement, Bedrock must prove that AOL's systems have the claimed structure and that this structure has the capability of functioning as described by the claim. See Mass Engineered Design, Inc. v. Ergotron, Inc., 633 F. Supp. 2d 361, 378 (E.D. Tex. 2009) (Davis, J.) ("All that is required is that the device have the claimed structure, and that this structure in the device have the capability of functioning as described by the claim.").4 With respect to AOL's arguments regarding Bedrock's evidence of infringement, the sufficiency of such evidence has already been addressed at the summary judgment stage. Dkt. No. 539 (denying AOL's Motion for Summary Judgment of Non-Infringement); Dkt. No. 659
As such, Bedrock need not address AOL's plea for reconsideration, which discusses Bedrock's evidence of infringement, as it is predicated on the assumption that the Court has applied an incorrect interpretation of the controlling case law. In its Motion, AOL has attached portions of Dr. Jones's Opening Report which detail Bedrock's evidence regarding the presence of the accused versions of Linux on AOL's computers. MOTION, Ex. A. Any arguments as to the sufficiency of that evidence are an issue for the jury. 3
(denying Defendants' Motion for Summary Judgment of Non-Infringement). From that point forward, whether or not Bedrock has met its burden to prove non-infringement became an issue for the jury and will be determined at trial.5 III. CONCLUSION In light of the foregoing, Bedrock respectfully requests that the Court deny AOL's Motion for Clarification and Reconsideration of Judge Love's Order Denying Summary Judgment (Dkt. No. 665).
AOL's discussion regarding the possibility for prejudice and jury confusion relating to its being tried with multiple defendants was addressed in AOL's Emergency Motion for a Separate Trial. Dkt. No. 570. The Court has denied that Motion. Dkt. No. 678. 4
DATED: March 30, 2011
Respectfully submitted, McKOOL SMITH, P.C. /s/ Douglas A. Cawley Sam F. Baxter Texas Bar No. 01938000 McKOOL SMITH, P.C. firstname.lastname@example.org 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 email@example.com Theodore Stevenson, III Texas Bar No. 19196650 firstname.lastname@example.org Scott W. Hejny Texas Bar No. 24038952 email@example.com Jason D. Cassady Texas Bar No. 24045625 firstname.lastname@example.org J. Austin Curry Texas Bar No. 24059636 email@example.com Phillip M. Aurentz Texas Bar No. 24059404 firstname.lastname@example.org Stacie Greskowiak Texas State Bar No. 24074311 email@example.com Ryan A. Hargrave Texas State Bar No. 24071516 firstname.lastname@example.org 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: email@example.com E-mail: firstname.lastname@example.org ATTORNEYS FOR PLAINTIFF BEDROCK COMPUTER TECHNOLOGIES LLC
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 30th day of March, 2011.
/s/ Ryan A. Hargrave Ryan A. Hargrave