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

Filing 690

REPLY to Response to Motion re 665 Opposed SEALED MOTION for Clarification and Reconsideration filed by AOL Inc. (Dacus, Deron)

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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 DEFENDANT AOL INC.'S REPLY BRIEF IN SUPPORT OF ITS MOTION FOR CLARIFICATION AND RECONSIDERATION OF JUDGE LOVE'S ORDER DENYING SUMMARY JUDGMENT REGARDING THE LEGAL ISSUE OF WHETHER MERE CAPABILITY IS SUFFICIENT FOR INFRINGEMENT OF CLAIMS 1-2 OF THE `120 PATENT [DKT. NO. 665] In Bedrock's Opposition to AOL's Motion for Clarification and Reconsideration, Bedrock incorrectly asserts that claim 1 of U.S. Patent No. 5,893,120 ("the '120 patent") is a purely means-plus-function claim. While certain elements of claim 1 are written using meansplus-function language, the first element of the claim, quoted below, is not a means-plus-function claim element: a linked list to store and provide access to records stored in a memory of the system, at least some of the records automatically expiring '120 Patent at claim 1. For this reason, Bedrock's only cited case, Mass Engineered1 does not apply to claim 1. Furthermore, Bedrock's response completely ignores recent Federal Circuit case law cited in AOL's Motion. In Centillion Data Sys. v. Quest Commc'n Int'l, Inc., the Federal Circuit held that "to `use' a system for purposes of infringement, a party must put the invention into service, i.e., control the system as a whole and obtain benefit from it." 631 F.3d 1279, 1284 (Fed. Cir. 2011) (emphasis added). Here, Bedrock has no evidence, nor can it, that AOL obtains any benefit from the accused code. The only testimony on this issue is that of Bedrock's infringement expert, Dr. Jones, who has unequivocally testified that he has no evidence AOL executes the accused code. In the absence of any evidence to the contrary, AOL is entitled to summary judgment. AOL respectfully requests that the Court clarify the legal issue of whether the functional elements of system claims 1-2 of the '120 Patent must be performed in order to infringe. If the Court has already determined that the system claims do require actual performance, AOL respectfully requests the Court to reconsider its order denying summary judgment for AOL. 1 Mass Engineering Design, Inc. v. Ergotron, Inc., 663 F. Supp. 2d 361, 378 (E.D. Tex. 2009) -1- Respectfully submitted, this 31st day of March 2011. /s/ Deron Dacus____________ Deron R. Dacus Texas Bar No. 00790553 derond@rameyflock.com Ramey & Flock, P.C. 100 E. Ferguson, Suite 500 Tyler, Texas 75702 Telephone: (903) 597-3301 Facsimile: (903) 597-2413 Frank G. Smith frank.smith@alston.com ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309 Telephone: (404) 881-7240 Facsimile: (404) 256-8184 Alan L. Whitehurst alan.whitehurst@alston.com Marissa R. Ducca marissa.ducca@alston.com ALSTON & BIRD LLP The Atlantic Building 950 F Street, N.W. Washington, DC 20004 Telephone: (202) 756-3300 Facsimile: (202) 756-3333 Louis A. Karasik (pro hac vice) lou.karasik@alston.com Rachel Capoccia rachel.capoccia@alston.com ALSTON & BIRD LLP 333 South Hope Street 16th Floor Los Angeles, CA 90071 Telephone: (213) 576-1148 Facsimile: (213) 576-1100 Attorneys for Defendant AOL Inc. -2- CERTIFICATE OF SERVICE This is to certify that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3) on this March 31, 2011. Any other counsel of record will be served by first class mail. _______/s/ Deron Dacus___________ -3-