Ward v. Cisco Systems, Inc. et al

Filing 70

MOTION to Dismiss For Failure to State a Claim Upon Which Relief May Be Granted by Cisco Systems, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D-1, # 5 Exhibit D-2, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Proposed Order)(Babcock, Charles)

Ward v. Cisco Systems, Inc. et al

Doc. 70 Att. 5

Case 4:08-cv-04022-JLH Document 70-6

Filed 06/12/09 Page 1 of 8

EXHIBIT E

Dockets.Justia.com

Case 4:08-cv-04022-JLH Document 70-6
Patent Trot raa her: 'Iron Call tool Oliver l'atcnt S00% for October 2007

Filed 06/12/09 Page 2 of 8

Paten6Troll Trackźr
An alternative

look at patent litigation trends, focusing on the increasing number of patent lawsuits brought by shell corporations that make or sell no goods or services.

4

Wednosday, November 7, 2007

Email Rick

'c",

Troll Call and Other Patent Stats for October 2007
Let's get right to it this month. The onslaught of cases in Eastern Texas continues. This month, I notice somewhat of an uptick in declaratory judgment cases. Also, as I posted yesterday, I notice perhaps the first troll

trolltrackerQgmail.com

About Me

Rick Frenkel
case filed by Altitude Capital Partners. Note that in September, Computer

Patent lawyer, trying to gather and
Acceleration (Acacia) filed one lawsuit against 7 defendants. This month, organize information about patent Judge Clark ordered that case closed and split into 7 new cases, which litigation in an informative and useful were filed in October. f have therefore only added 6 cases (and no way. defendants) to this months's stats to account for this. I didn't add to the troll list, either - it was already counted last month. I also didn't add the two Katz cases that showed up in CDCA, since they were transferred from elsewhere.

ps0. e.

October Statistics

EFF is helping bloggers protect their Constitutional right to anonymous speech

With those disclaimers out of the way, here are the October stats:

ED Texas: 34 patent cases, 115 defendants sued (12 troll cases)
www.aff.org

D New Jersey: 23 patent cases, 39 defendants sued (3 troll cases) CD California: 21 patent cases, 150 defendants sued (1 troll case) SD New York: 5 patent cases, 8 defendants sued (0 troll cases) D Delaware: 20 patent cases, 33 defendants sued (6 troll cases) ND Illinois: 14 patent cases, 25 defendants sued (1 troll case) ND California: 13 patent cases, 19 defendants sued (0 troll cases)

Blogs I Read
Above The Law (people Magazine, _for Lawyers1

Non-EDTX Troll Cases httpl/trollicacketblogspot com/2007/I Ittroll·call-and-other-pment·solts-for.html (1 of IC

' Anticipate This!

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Pillow FruII I ravkar: II Call mid Oilivr Ilittvnt Stills rot (ktubvr 2007

Filed 06/12/09 Page 3 of 8

Wow, this month there are almost as many non-EDTX trotl/NPE cases as there are EDTX troll/NPE cases. But don't get too excited, many are DJ suits.

.

Ben Oil

ight

· ChiqtgolP, Litigation_Blog Delaware IP Law Blog . Dennis Crouch's Patently-0 Blog_ (the Godfather of Patent Blogsj . How Appealinit-lowarO Bashman) · IAM Magazine BloglEuro-focused) · Ideation Lab

1) Heidelberg USA v. Screentone Systems Corp. (0.1) (Del., October 1), Acacia. These DJs (and ones in the Western District of Washington) relate to a case filed in EDTX where, allegedly, Acacia failed to get proper standing.

2) Konica Minolta v. Screentone Systems Corp. (DJ) (Del., October 1)

3) American Patent Development Corp. v. Movielink LLC (Del., October 2)
· Lf.).,,...g.C,P

4) International Intellectual Management Corp. v. 111 Defendants (CDCA, · IP Kat (UK) October 2). New patent troll - website here. Apparently run by a few LA patent attorneys who, not surprisingly, are representing the IIMC in their lawsuit against 111 small businesses. And who says patent trolls are the plague of large corporations alone? · Just a Patent Examiner · Michael Smith's EDTX Blog · Overlawvered id Patent Baristas 5) Discover Products, Inc. v. Phoenix Licensing, LLC (DJ) (NDIL, October 11) .;` Patent Demand 6) Papst Licensing GmbH Et Co v. Samsung (2 entities) (DNJ, October 12) Patent Prospector 7) Refined Recommendation Corp. v, Netflix (DNJ, October 16). Acacia. Posted on it. · Patently Absurd Inventions Archive . Patent ly_ Silty · Peter Zura's 271 Patent Blog . Phillip Brooks' Patent Infringement 9) HP v. Acceleron (DJ) (Del., October 17) 1)PSJ.4.S.P. 10) Cisco v. GPNE (DJ) (Del., October 24)
· 5...CP.T145P12g

8) Citicorp Credit Services v. LPL Licensing (DJ) (Del., October 17)

11) Digital Technology Licensing, LLC v. T-Mobite (DNJ, October 25). Posted about DTL and its parent General Patent Corp here, f guess they thought they coutdn't get personal jurisdiction over T-Mobile in EDTX? Because its the same patent that is being litigated there.

. Spicy JPAIndia) · Techciii t The Volokh Conspiracy Washington State Patent Law Blog WSJ Law Blog

Cumulative Statistics for 2007

http.1/trulitracker_blopput.curril2007/1 I/troll-call- Id-other-patent-

ts-for him! (2 of

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Case 4:08-cv-04022-JLH Document 70-6
Patent Troll Trucker: Troll Call and Other Voice( Slats for October 2007

Filed 06/12/09 Page 4 of 8

Here are the statistics for the first ten months of 2007, comparing the various districts:
EMail Newsletter

ED Texas: 309 patent cases, 1,076 defendants sued (124 troll cases) CD California: 224 patent cases, 602 defendants sued (15 troll cases) D New Jersey: 156 patent cases, 296 defendants sued (10 troll cases) ND California: 116 patent cases, 222 defendants sued (16 troll cases) ND Illinois: 114 patent cases, 219 defendants sued (21 troll cases) D Delaware: 113 patent cases, 271 defendants sued (15 troll cases) SD New York: 86 patent cases, 229 defendants sued (11 troll cases) So the Eastern District has already blown away the record for most number of patent cases filed in a judicial district in one year. 309 patent cases in 304 days.
Subscribe Troll Call for October 2007

Enter your email address below to receive the Patent Troll Tracker blog posts in a daily newsletter. The newsletter,, containing the previous day's posts, wilt be emaited tate in the morning, Eastern US Time. Enter your email address:

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Now here's the non-practicing entity/troll cal, for the Eastern District of Texas for October, 2007: 113) Data Match Enterprises of Texas, LLC v. eHarmony.com , Inc., Date, com, Friendfinder Network, and Singlesnet, inc. (Marshall, October 4). Posted on this here. A Ward & Otivo special. Google 114) Digital Reg of Texas, LLC v. Hustler.com , Apple, Audible, Blockbuster, LEP, Inc., Macrovision, Microsoft, Playboy, and Sony (and one related Sony company) (Tyler, October 5). Ah yes, Larry Flynt comes to
Tyler. Read about it here. Blog Archive

Subscribe Now: Feed Icon

115) IP Innovation, LLC v. Red Hat Et Novell (Marshall, October 9), This one got a lot of press due to the attack on Linux. But you read it fi st

.

2008 (49)
February (20) · Blogger3eyealeci

here.

116) ESN, LLC v. Cisco (and related company) (Texarkana, October 15. No wait, October 16. No, October 15. When was it "filed" again?). I posted on

· Desire2Appeal . Ted Frank on Patent. ...........
n Email FTOIT1

it here. Michael Smith also had a post on the case. I had thought there
was a dueling jurisdictional battle. But then I read an article yesterday

http litolltracker blegspot com,'2007/ I litroll . ealllind-other-patere-stms-for hnhl (3 of 18):

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Case 4:08-cv-04022-JLH Document 70-6
hitt:tit Troll I'llicker Trull (!tkll utui Otiwr l'nicni Sluts tbr October 21107

Filed 06/12/09 Page 5 of 8
. Mike Masnick on Intellectuat Propert.y . Trott Wars

that ESN dismissed its case against Cisco. I looked, and the same is true for the Cisco case against ESN: gone, got some critical emails for using the word "altered . ' with respect to the Texas docket. Well, Let me respond. If a document appears one day with a date stamp, and the next day that date stamp disappears and is replaced with a different stamp, what would
you

SaffranfinaL Judgment l,,Ippeci to Miltion Again,, . Business Method Patents To Face Scrutiny By_En

call it? To the extent the use of
illega(,

the word "altered" implied that anyone did anything

that was not

my intent. I'm positive the court clerk was fallowing local custom, as was

·
the ESN Texas lawyer, But putting aside the propriety of such actions with respect to local custom, isn't such a "customary" action detrimental to the credibility of the Court?
We

.2/15/08 Happyyalentine's Day . Taurus/Orion/

have to be able to trust the U.S. courts and

their ECF system. How can we trust the courts when date stamps on documents disappear one day and reappear the next day with a different date? This all could be averted if the Local Rules committee adds a rule that no document shall be replaced without a motion made to correct the docket.

Off Ford in Madison;
· YANkt...

Patent Case... 117) Mobile Micromedia Solutions LLC v. General Motors (Marshall, October 16). I posted about Mobile Micromedia here. At the time, MMS had onty sued Nissan, and was about to go to trial. I guess GM is #2. 118) VTran Media Technologies, LLC v. Corncast, Charter Communications, Time Warner Cable and Verizon Communications (Marshall, October 17). Wow, a case I appear to have missed. I saw the name VTran and assumed it was a real company. But, now I think not. The manager of VTran is Lawrence Brannian, who lists an address at the Dallas law firm Sriell, Wylie Et Tibbals. Brannian is of counsel there. The complaint, filed by Ward & Olivo, says that VTran is located at 104 E. Houston St ,, Suite 140, Marshall TX. Hrnmmmmm. Same address as Ward Et Olivo client Data Match Enterprises of Texas - see #113 above. Getting crowded in that suite!
Rembrandt . The Qnce-Compapy..
Iltrlyiltro ,,Itrecker..ologspotcom/2001/ I (troll-call-dnd-t4 her-patent-strits-tbr.html (4 of 18):

. Saffran v. Boston
Scientific

. Two New.Blogs I'm Readingon Global IP

·
over iTunes ,,. In East St,...tpui, · 11..ot.n.t....L.q.igptipn stati§Lio for Jr.inuary. zpsm

. Global Patent Holdings' Amended Complaint in Flori...
· Victory for

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·

Case 4:08-cv-04022-JLH Document 70-6
luVl Tincker
it'll Call 1311d

Filed 06/12/09 Page 6 of 8

C)ther Patent Slo g Cur Oviubvc 2007

Anyway, according to this Ocean Torno press release, the patents-in-suit were auctioned on October 26, 2006 in New York City. And according to this article, "an anonymous bidder paid $900,000" for these 2 patents (the expected value was $1,250,000). Hey - is this the first instance of an Ocean Tomo auctioned patent asserted in patent litigation? Labels USPTO assignment records show that on 10/26/06 -- same date as the Ocean Tomo Auction the inventors and some other guy who apparently went to college in Kansas with the inventors assigned the patent to Concert Technology Corporation of Durham, NC. Concert Technology is interesting - they have been transferred patents through this auction, and also from 3Com and others. According to their website, Concert "has a

. Manic Monday

, · January (29) · 2007 (136)

. 104_E._i-fouston_St. (3) ·· tst Media(1) 1st Tec,hpology.,(3) . Acacia (47)
Accolade 5_ysterp5,._(1)

strong focus on acquiring and licensing core technologies in the music and . ADISCOV_(2) video markets." Evidently, Concert does some R&D, or at least their website makes it look like they do. So rm stumped and befuddled by who is behind this. It looks like a burgeoning troll. But on the other hand, they employ engineen. And if this is Concert, why use a fake corporate shell in Texas through a Dallas law firm? Why not take advantage of the CS/R0 decision and try to exert leverage through the fact that they are a real-ish company and can get an injunction? More on the patents. Taeus, an enEtneering_firm that helps clients make money from their patent portfolios, gave the lead patent a TIPScore of 3.8 on a scale of 1.0 to 5.0. Finally, if you search for the lead inventor on Google, the fifth or so hit is for a divorce proceeding, where Monslow and his ex-wife fought over the two patents-in-suit in a case that went all the way to the Supreme Court (of Kansas, that is). See, a simple boring patent case, when you dig deeper merely by using Googte for a few minutes, involves divorce, Supreme Court battles, auctions, and nefarious manipulation of Texas shell corporations. Discovery in this case would seem to be appropriate in Kansas, North ·
http://trolltracker.blogspotcom/2007/11/troll . call-and-olher-patent-stats-for.html (5 of 18)'

. Adv Tech Incubator (1)
· Aloxsarn..(5) · Allft.M.g.041(1)

· Aiti.t.W.Cl.QC il4Pi,t0iT....C t.ftPt, (9) · ,anagrams_(3) n ·· q()011YIPItY..(12)
Anthonv O. Brown (1) Antor Media (5)
AOL (1)

Appte (9) Aris Mardirossian (1) · ArtesYn_ (1) AL:11(6) _ · attorney DLLs (7) . Austin _(1) . Automated Facitities (2) Autotext (3)

FRENKEL.000059

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Patent 'FroII Tracker: Troll Call and Other Palen, Stalk Ibr Oottbcr 2(k0

Filed 06/12/09 Page 7 of 8

Carolina, maybe New York, but probably not Texas. · I3arry Thomas (1) 119) Saxon innovations, LLC v. Nokia (2 entities), High Tech Computer Corp., LG (2 entities), Nintendo (2 entities), Palm, Research in Motion (2 ent t es), Samsung (3 entities), and Sharp (2 entities) (Tyler, October 18). I posted on this case here. Then I put two and two together in this post. · bio 7 pharma (4) Saxon Innovations is Altitude Capital Partners, who I posted on here. Now, 6tack6eard_(2) in addition to pu(ting the strings in the Visto v. Microsoft case (and other Visto cases), Altitude is flying high with a case of its own. Who knows if it's the first. That's the thing about this business: you can have shell after shell and remain relatively hidden. Hmm. The Federal Rules of Civil Procedure require disclosure of parent corporations in order to assist judges in recusal decisions. But it only requires the immediate parent. In light of the trend of multiple layers of corporations, the rules should be changed to require disclosure of all parents, up to the ultimate parent, 120) Sky Technologies, LLC v. Procuri, Inc. (Marshall, October 19). Sky Technologies is no stranger to the courts in Texas. Their latest suit was against SAP and Oracle in late June, 121) Phoenix IP, LLC v. Schneider Electric (and 1 related company), Power Measurement Ltd. (and 1 related company), and Square D Company (Marshall, October 22). Erich Spangenberg and David Pridham, continuing the litigation factory. 122) Advanced Technology Incubator, Inc. v. Sharp Corp. (and related company) and Dai Nippon Printing (and related company) (Marshall, October 29). Advanced Technology Incubator is a company set up by Zvi Yaniv, an Israeli who moved to the US for graduate school and stayed (apparently). He set up the company in Michigan when he lived there, but then moved it to Austin, Texas when he moved there to be CEO of an · Citrix.(1) Austin-area company and a ktrietic_artist. According to the complaint, the . Clay Dark (1)
hltpilrrolltracker.blogspot.corv2007/11/troll-call-and-cth6r-patcnt-stats-ror.html (6 nr I tty

· BarTex (3)

Beneficial Innovations (1) · Bill Gat_es (1)

· .WP..ggin.g_(22) . Boca Resort_.(3)

·
Boston Scientific (2) · .t,,?..91,1,111.Y._ (2) Brian Marcus (1) British Technology Group_.(1)
Bruce Renouard (1) Burst.com (1)

business method oatents,(1) · Cablevision (1) · CialY.19_AY.f..e.(3) · Card Activation Tochs,,(1) · CI.I.P.I.TiflertY_.(1) .` Charles Hill (1) · ChoonRsoo Park (1) Ciba_(3) · Cingutar (1) · Cisco_(4)

FRENKEL.000060 Ark.001479

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Pinunt!flicker. Troll Call nod 011icr l'alenl Soils lin Th;tabi;r 2007

Filed 06/12/09 Page 8 of 8

patent was originally assigned to LG-Phitips but now he has the rights. This entity is more along the tines of an individual inventor holding company!

· Comaa (1 ) . Commit USA,(2)

NPE, not a troll. · Corriptiter Acceleration (3) 123) Wi-LAN, Inc, v. Acer (2 entities), Apple, Atheros, Best Buy, Broadcom, Circuit City, Dell, Gateway, HP, Intel, Lenovo (2 entities), . constitution (1) Marvell, Sony (4 entities), and Toshiba (3 entities) (Marshall, October 31), . contingency, fee_(4) See post here.
· Coole,y_(2)

· Cpnstellation_IP_(1)

124) Wi-LAN, Inc. v. Westell Technologies, 2Wire, Atheros, Betkin, Best Buy, Broadcom, Buffalo, Circuit City, D-Link (2 entities), Infineon (2

· Coronary Stent Visualization Coro. (1) corporatesh,e0garnes_(2)

entities), Intet, Marvelt, Melco Holdings, Netgear, and Texas Instruments Creatlye Internet (1) (Marshatl, October 31). See post here,. . Credit Card Fraud Control Corp. (1) That's it for this month's instatlment. · Cross Atlantic (1) TT
· CS11:0 (3)

·· C.Y.12trgYl71.(3) Posted by Rick Frenket at 8:34 AM_ · P.,l1.11i4_(4) Labels; 104 E,Hpuston, 51, Acacia, Adv TechIncutator:, Cjg,,q, Ma,
· Ma(ch, ESN, International Intellectual Mg,mt, Ocean Tomo, Phoenix ip, Sky_ P4 lL1.1cTOP l : QP (1)

TechnolO g iCs., Aatistics, Th. e1-4!, verue, VTran, WArd QUY.P.

. dance contest (1) . Data Encryption_(1) Data Match (2)

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