Personalized User Model LLP v. Google Inc.

Filing 394

REDACTED VERSION of 382 Letter, to The Honorable Leonard R. Stark from Karen Jacobs Louden regarding response to Court's August 21, 2012 Oral Order setting the August 31, 2012 conference by Personalized User Model LLP. (Tigan, Jeremy)

MoRRIS, NrcHOLS, ARsHT

& TuNNELL LLP

1201 NostTH MAiutET S nEET
P.O. Box 1347
WILMINGTON, Du.AWAllll 19899- 1347
302 658 9200
302 658 3989 FAX

KAuN JAooas LouDEN

August 29,201 2

302 351 9227
302 425 4681 FAx
[e-mail]

BYE-FILING
The llonorable Leonard P. tark
United States District Court
for the District of Delaware
844 North King treet
Wilm ington, DE 19801
Re:

PUBLIC VERSION
[~
Confidential Version Filed: August 29, 2012
Public Version Filed: September 6, 2012

Personalized User Model, L. L. P. v. Coogle, Inc.
C.A. No. 09-525 (LPS)

Dear Judge Stark:
We write on behalf of Plaintiff Personali zed User Model, L. L. P. ("P.U.M.") to address
the matters set forth in the Court's August 21, 201 2 Oral Order setting the August 31, 20 12
conference.
1. This Court Should Set a Trial Date

The Court should set a trial date now because this action has been pending for more than
three years and needs to move forward to resolution without further delays. It will be years more
before P.U.M. can obtain complete resolution because both discovery and trial on damages and
will fulness were bifurcated for later proceedings. (D.I. 32). Assuming P.U.M. wins on its
infringement claims in the first trial, damages and willfulness discovery will then begin
culminating in a second trial even further down the road.
The Court entered its claim construction order on January 25, 201 2, and opening expert
reports were served on April 11 , 201 2. The remaining expert discovery was extended several
times to accommodate Google and its expert. (D.I. 364 and 366).

On August 10, 20 12, P.U.M. served a supplemental infringement expert report, and
rebuttal reports are due on September 7, 20 12 (now five months after service of opening reports).
(D. I. 367). Google now seeks a further extension to an already stretched out schedule.
Contrary to Google's assertion, the pending reexamination proceedings provide no basis
not to set a trial date. The reexamination proceedings are far from over and are likely to be just
as hard fought as this litigation. For example, the Examiner's ru lings on the reexaminations will

The Honorable Leonard P. Stark
August 29, 2012
Page 2

likely be appealed to the Board of Patent Appeals and Interferences and then to the Federal
Circuit, regardless of which side prevails. Thus, it may be years before the matters are finally
resolved. The Court should not delay setting a trial date based on a motion that Google has not
yet filed. Should the Court grant such a motion to stay in the future, which we do not believe it
should grant, the trial date of course could be vacated at that time.
As evidenced by Google's continuous requests to further delay the case (i.e., stating it
would move to stay the case (OJ . 371), and requesting yet a further extension of time for rebuttal
reports), setting a trial date for March 20 13, or at the Court's convenience soon thereafter, will
ensure that this long pending dispute will stay on track towards resolution and that P.U.M. wi ll
finally have its first day in court more than three and a half years after the Complaint was fi led.
2. P.U.M.'s Supplemental Infringement Expert Report Should Not Be Stricken

Indeed, Google does not explain why it agreed to this additional discovery if it
could not be used to assert infringement.
Second, Google is not w1fairly prejudiced. Google pri marily argues that its experts
would have to undertake a "substantial investigation and analysis ..." (D.I. 374 at 2) to rebut the
supplemental report.
oogle began producing relevant documents in May of 2012 and made
source code available starting in July of 20 12. Additional ly, the amount of discovery which
Google produced is very limited.

P.U.M. reserves the right to assert in future litigation that other Google products using
Portrait, not now involved in this case, also infringe P.U.M.'s patents.
2

The llonorable Leonard P. Stark
August 29, 2012
Page 3

For the above reasons, P.U.M's supplemental infringement expert report should not be
stricken.
3. Google Should Not Be Permitted Yet Another Extension of Time for Expert
Discovery

Google' s alternative request that the due date for its rebuttal report be extended until four
weeks after the Court' s ruling, and to extend the remaining dates for expert depositions (now set
for October 2), and case dispositive motions (now set for November 7) should be denied (and
emphasizes why a trial date is needed). After weeks of negotiation, the parties agreed upon the
present schedule (D.I. 367), which required P.U.M. to serve its supplemental infri ngement report
only ten days after the Rule 30(b)(6) deposition, which it did, and allowed Google four full
weeks to respond to this limited supplemental report. In addition, Google will have had five
months to respond to P.U.M.'s original infringement contentions.
As
a result, Google cannot credibly claim unfair prejudice. For each of these reasons, the Court
should not grant Google' s request for an extension of time.
4. Summary Judgment Page Limitations

P.U.M. requests that the number of summary judgment motions that can be filed be
limited to facil itate resol ution of this matter and avoid an undue drain on the resources of the
Court and the parties. In this hard fought litigation it is highly unlikely that there will be any
motions, let alone two, that are devoid of factual disputes. P.U.M. therefore proposes that each
side be limited to two summary judgment motions, limited to twenty pages each. And in no
event should the briefing exceed forty pages.
For these reasons, P.U.M. respectfully requests that the Court set both a Pretrial
Conference and a trial date, that P.U.M.'s supplemental infringement report not be stricken, that
Google not be permitted to extend the schedule yet agai n, and that summary j udgment briefing
be limited to two motions, twenty pages each.
Respectful! y,

/s/ 'Kflren Jaco6s Louaen
Karen Jacobs Louden (#2881)

cc:

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