Personalized User Model LLP v. Google Inc.

Filing 501

REDACTED VERSION of 492 Reply Brief, in Support of Proposed Cross-Motion for Summary Judgment on Google's Declaratory Judgment Claims and Standing Defense Regarding SRI by Personalized User Model LLP. (Tigan, Jeremy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PERSONALIZED USER MODEL, L.L.P.,

)
)
Plaintiff,
)
v.
)
)
GOOGLE, INC.,
)
)
Defendant.
)
)
)
)
GOOGLE, INC.
)
)
Counterclaimant,
)
v.
)
PERSONALIZED USER MODEL, L.L.P. and )
)
YOCHAI KONIG,
)
Counterclaim-Defendants. )

C.A. No. 09-525 (LPS)
PUBLIC VERSION

PUM’S REPLY BRIEF IN SUPPORT OF ITS PROPOSED CROSS-MOTION
FOR SUMMARY JUDGMENT ON GOOGLE’S DECLARATORY
JUDGMENT CLAIMS AND STANDING DEFENSE REGARDING SRI
OF COUNSEL:
Marc S. Friedman
SNR DENTON US LLP
1221 Avenue of the Americas
New York, NY 10020-1089
[phone]
Mark C. Nelson
SNR Denton US LLP
2000 McKinney Avenue, Ste. 1900
Dallas, TX 75201
[phone]
Jennifer D. Bennett
SNR DENTON US LLP
1530 Page Mill Road, Ste. 200
Palo Alto, CA 94304-1125
[phone]
Original Filing Date: February 4, 2013
Redacted Filing Date: February 18, 2013

MORRIS, NICHOLS, ARSHT & TUNNELL LLP
Karen Jacobs Louden (#2881)
Jeremy A. Tigan (#5239)
Regina S.E. Murphy (#5648)
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Personalized User Model, L.L.P.
and Yochai Konig

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................2
I.

THERE IS NO GENUINE ISSUE OF MATERIAL FACT THAT
GOOGLE’S DECLARATORY JUDGMENT COUNTERCLAIMS ARE
TIME-BARRED ..................................................................................................................2
A.

B.
II.

Google’s Declaratory Judgment Counterclaims Were Not Tolled
Because The Facts On Which They Are Based Were Neither
Fraudulently Concealed Nor Inherently Unknowable. ............................................2
Google Cannot Rely On Section 8117 To Revive Stale Claims
That SRI Chose Not To Pursue More Than A Decade Ago. ...................................5

GOOGLE’S STANDING DEFENSE ALSO FAILS BECAUSE PUM IS
THE ONLY OWNER OF THE PATENTS-IN-SUIT. ........................................................8

CONCLUSION ..............................................................................................................................10

-i-

TABLE OF AUTHORITIES
CASES

Page(s)

Bd. of Tr. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc.,
583 F.3d 832 (Fed. Cir. 2009)..............................................................................................9, 10
DDB Techs., L.L.C. v. MLB Advanced Media, L.P.,
517 F.3d 1284 (Fed. Cir. 2008)..................................................................................................9
FilmTec Corp. v. Allied-Signal Inc.,
939 F.2d 1568 (Fed. Cir. 1991)................................................................................................10
Hurwitch v. Adams,
151 A.2d 286 (Del. Super. Ct. 1959) .........................................................................................6
Hurwitch v. Adams,
52 Del. 247 (Del. 1959) .............................................................................................................7
Lecates v. Hertich Pontiac Buick Co.,
515 A.2d 163 (Del. Super. Ct. 1986) .........................................................................................4
Madison Fund, Inc. v Midland Glass Co., Inc.,
No. 394-1974, 1980 WL 332958 (Del. Super. Ct. Aug. 11, 1980) ............................................3
Medtronic Vascular, Inc. v. Advanced Cardiovascular Sys., Inc.,
2005 WL 388592 (D. Del. Feb. 2, 2005) ...............................................................................3, 4
Medtronic Vascular, Inc. v. Advanced Cardiovascular Sys., Inc.,
2005 WL 46553 (D. Del. 2005) (“Medtronic I”) ...................................................................2, 3
Portfolio Recovery Assocs., LLC v. King,
927 N.E.2d 1059 (N.Y. 2010) ....................................................................................................6
Saudi Basic Indus. Corp. v. Mobil Yanbu Petrochemical Co., Inc.,
866 A.2d (Del. 2005) .................................................................................................................7
Schmidt v. Polish People’s Republic,
742 F.2d 67 (2d Cir. 1984).........................................................................................................6
Wal-Mart Stores, Inc. v. AIG Life Ins. Co.,
860 A.2d 312 (Del. 2004) ..................................................................................................3, 4, 5
Wright v. Dumizo,
No. 08-292, 2002 WL 31357891 (Del. Super. Ct. Oct. 31, 2002) .............................................4
RULES AND STATUTES
10 Del. C. § 8117 ................................................................................................................... Passim

- ii -

INTRODUCTION
In its Opposition, Google does not, as it cannot, dispute that SRI’s ownership claims, if
any, accrued in 1999, a dozen years before Google brought its counterclaims. Instead, Google
asserts that the three-year Delaware statute of limitation was tolled, but does not and cannot cite
to any evidence showing that the relevant facts were fraudulently concealed or inherently
unknowable, as Delaware law requires to establish tolling. Finally, Google’s standing defense,
based only on SRI’s stale and indisputably non-existent co-ownership claims, also fails and
should be dismissed.
To support its tolling defense, Google spends much of its brief arguing that it did not
learn of the conception date until discovery in this case. This is irrelevant. The relevant inquiry
for tolling is whether Google’s assignor SRI had access to facts that would cause it to inquire
whether it had a cause of action. Had SRI thought that Dr. Konig’s invention might relate to his
SRI work or any other SRI business, it would have had every reason to investigate no later than
2001-02,
when the ’040 patent was issued, naming Dr. Konig as an
inventor and listing a December 1999 provisional patent application. Those facts plainly were
not fraudulently concealed from or inherently unknowable to SRI. Google does not and cannot
contend otherwise. For its final “Hail Mary” pass, Google relies on 10 Del. C.§ 8117 to toll the
statute based on its assertion that Dr. Konig was not previously amenable to service in Delaware.
However, Section 8117 does not apply where, as here, a California-based plaintiff had a dozen
years to sue Dr. Konig, a California resident, in California for claims arising there, and where
SRI also could have sued Dr. Konig’s assignee, Utopy, Inc. in Delaware, had it chosen to do so.
Google’s standing defense also fails. Google tacitly admits it has no current rights in the
patents that impact standing. It also does not dispute that SRI was never a co-owner because

Dr. Konig’s Employment Agreement was not an assignment of rights, but, at best, a promise to
assign in the future inventions falling within the scope of that Agreement. Google acknowledges
this, asserting that it “has filed counterclaims to perfect its ownership rights.” D.I. 486 at 10.
But any such claims expired years ago. Because there are no co-owners who should have been
joined as a co-plaintiff with PUM, Google’s standing defense also fails.
Accordingly, PUM’s proposed cross-motion should be granted.1
ARGUMENT
I.

THERE IS NO GENUINE ISSUE OF MATERIAL FACT THAT GOOGLE’S
DECLARATORY JUDGMENT COUNTERCLAIMS ARE TIME-BARRED
A.

Google’s Declaratory Judgment Counterclaims Were Not Tolled Because
The Facts On Which They Are Based Were Neither Fraudulently Concealed
Nor Inherently Unknowable.

PUM’s proposed cross-motion should be granted because Google’s Opposition
demonstrates that none of the material facts supporting PUM’s requested relief are in dispute.
as Google contends
(and PUM disputes), that is when SRI’s claim, if any, accrued, whether or not it had knowledge
of the claim. See Medtronic Vascular, Inc. v. Advanced Cardiovascular Sys., Inc., No. 98-80SLR, 2005 WL 46553 (D. Del. Jan. 5, 2005), aff’d, 182 F. App’x 994 (Fed. Cir. May 26, 2006)
(“Medtronic I”).

Third, Google does not dispute that the issuance of the ’040 patent on

1

Contrary to Google’s assertion, PUM did not “engage[] in ‘self-help’” in filing a crossmotion. PUM will file its cross-motion when and if the Court grants leave. As it explained,
PUM relies on the same facts for its proposed cross-motion as those on which it relies in
opposition to Google’s motion, and included those facts in its allotted page limits. Rather than
addressing those facts in its reply brief, Google unilaterally filed a separate opposition, taking an
additional ten pages without leave of Court.

-2-

December 27, 2005 – listing on its face a December 1999 provisional application – served as
constructive notice to the world of Dr. Konig’s invention. See id.
Instead, Google sets up two strawmen.

First, Google contends that the statute of

limitation started only when it learned about conception. See id. at 3 (“During Discovery,
Google Learns That the Patented Invention Was Conceived During Konig’s SRI Employment”).
This is incorrect. What is relevant is when Google’s assignor SRI knew or should have known
of its claim. Google is charged with SRI’s knowledge. It is black letter law that “the assignee
stands in the shoes of the assignor; he acquires no greater right than that which was possessed by
his assignor.” Madison Fund, Inc. v Midland Glass Co., No. 394-1974, 1980 WL 332958 (Del.
Super. Ct. Aug. 11, 1980) (holding that statute of limitations barred plaintiff assignee’s suit
against obligor because claim originally belonged to non-party assignors against whom the
statute of limitations had already run).

and when the first
patent issued on December 27, 2005, naming Dr. Konig as an inventor and listing a December
1999 provisional date (see D.I. 1-1, Ex. A), SRI at the very least would have been put on inquiry
notice to determine when conception occurred. See Wal-Mart Stores, Inc. v. AIG Life Ins. Co.,
860 A.2d 312, 319 (Del. 2004) (statute begins to run “upon the discovery of facts constituting the
basis of the cause of action or the existence of facts sufficient to put a person of ordinary
intelligence and prudence on inquiry, which if pursued, would lead to the discovery of such
facts”) (emphasis in quoted material is added unless otherwise noted); Medtronic Vascular, Inc.
v. Advanced Cardiovascular Sys., Inc., No. 98-80-SLR, 2005 WL 388592, at *1, n.4 (D. Del.
Feb. 2, 2005), aff’d, 182 F. App’x 994 (Fed. Cir. May 26, 2006) (“Medtronic II”) (“Patents

-3-

served to ‘put the world on notice’ with respect to what the patentee claims to own” and starts
the statute of limitations running). Google does not contend otherwise.
Next, Google advances an erroneous legal standard, asserting that “the statute of
limitations is tolled until the plaintiff could reasonably have discovered the basis for its claim.”
D.I. 486 at 1. As explained in PUM’s opening brief, ordinarily the statute of limitations begins
to “run at the time of the alleged wrongful act even if the plaintiff is ignorant of the cause of
action.” D.I. 452 at 8 (citing Medtronic II). As Google’s own cited case acknowledges, the
statute is only “tolled where the injury is ‘inherently unknowable and the claimant is
blamelessly ignorant of the wrongful act and the injury complained of.’” D.I. 486 at 5 (quoting
Wal-Mart Stores, 860 A.2d at 319).

The statute also may be tolled where a defendant

“fraudulently conceals a wrong to induce the plaintiff to refrain from bringing suit.” Wright v.
Dumizo, No. 08-292, 2002 WL 31357891, at *3 (Del. Super. Ct. Oct. 31, 2002). Fraudulent
concealment requires an active, affirmative “misrepresentation or fraudulent artifice by which
the defendant has prevented the plaintiffs from discovering the basis for their cause of action.”
Lecates v. Hertich Pontiac Buick Co., 515 A.2d 163, 176 (Del. Super. Ct. 1986).
Google does not allege any facts demonstrating that the alleged wrong was either
inherently unknowable or fraudulently concealed.

Indeed, all that Google alleges is that

SRI/Google did not know of the alleged conception date until discovery in this case. See
D.I. 486 at 4-6. Even if that were true, it would be irrelevant under the correct legal standard.
Conception was neither concealed nor inherently unknowable. Quite to the contrary, Dr. Konig
actually invited his former employer to be a beta user of his invention and published it in a patent
that issued six years before Google brought its counterclaims. See D.I. 454, Ex. L at 62-63. Had
SRI suspected Dr. Konig’s invention related to his SRI work or SRI’s business, it would have

-4-

been on notice to inquire when conception occurred, especially given the listing of the December
1999 provisional application in the ’040 patent. See Wal-Mart Stores, 860 A.2d at 319 (statute
begins to run with existence of facts “sufficient to put a person of ordinary intelligence and
prudence on inquiry”). Not only did SRI take no action, it effectively disclaimed ownership by
refusing to warrant to Google that it held any rights to the patents. See D.I. 452 at 9, n.14.
As a result, Google’s assertion that “there is no way that Google or SRI could have
discovered that the invention was conceived during Konig’s SRI employment until discovery got
underway in this lawsuit,” D.I. 486 at 5, is indisputably wrong. Dr. Konig’s invention was not
hidden but was available for the world to see. All of the facts SRI needed to investigate a
potential claim were available to it long before Google’s discovery in this action.
Because there is no genuine issue of material fact that SRI’s claims were not tolled,
PUM’s proposed cross-motion should be granted.
B.

Google Cannot Rely On Section 8117 To Revive Stale Claims That SRI
Chose Not To Pursue More Than A Decade Ago.

Google’s attempt to rely on 10 Del. C. § 81172 also fails because that statute does not toll
actions that could have been brought, but were not, during the limitations period. Here, there is
no dispute that any cause of action SRI may have had arose in California, not Delaware. Nor is
there any dispute that Dr. Konig was at all times amenable to suit in California. SRI simply
chose not to pursue any action there, presumably because it thought it had none, as SRI’s
statements in its Quitclaim Assignment to Google confirm. See D.I. 431-1, Ex. G, § 8.5. That
Google, as an assignee, brought an ownership action against Dr. Konig and PUM years later in
2

Section 8117 provides that: “If at the time when a cause of action accrues against any
person, such person is out of the State, the action may be commenced, within [the statute of
limitations], after such person comes into the State in such manner that by reasonable diligence,
such person may be served with process.” The statute provides the same protection for claims
against Delaware residents where “such person departs from and resides or remains out of the
State.” 10 Del. C. § 8117.

-5-

Delaware in this patent infringement case (where Dr. Konig consented to jurisdiction to avoid a
multiplicity of actions) does not give Google a basis to revive claims that expired years ago.
Indeed, if SRI wished to pursue its purported claim in Delaware, it could have filed its
constructive trust claims against PUM’s predecessor, Utopy, a Delaware corporation.3

Dr.

Konig, the Chief Technology Officer and a Director of Utopy at the time, likely would have
consented to be joined (again, to avoid a multiplicity of actions). Simply put, Google cannot
show that Dr. Konig and his assignee Utopy were not amenable to service had SRI filed suit such
that Section 8117 should apply.
As the Delaware Superior Court explained in Hurwitch v. Adams, 151 A.2d 286, 288
(Del. Super. Ct. 1959), aff’d, 155 A.2d 591 (Del. 1959), “the obvious purpose and the only
purpose” of Section 8117 “is to allow reasonably diligent plaintiffs the statutory period within
which to obtain service upon an absent or once absent and later elusive defendant.” Id. at 288.
See also Schmidt v. Polish People’s Republic, 742 F.2d 67, 71 (2d Cir. 1984) (“[T]olling a
statute of limitations because of defendant’s absence from a jurisdiction is largely intended to
diminish the incentive to avoid service of process.”). As a New York court construing Section
8117 explained, it also “was meant to apply only in a circumstance where the defendant had a
prior connection to Delaware, meaning that the tolling provision envisioned that there would be
some point where the defendant would return to the state or where plaintiff could effect service
on the defendant to obtain jurisdiction.” Portfolio Recovery Assocs., LLC v. King, 927 N.E.2d
1059, 1062 (N.Y. 2010). Google’s proposed application of Section 8117, however, would
extend the Delaware statute of limitation to claims and against defendants with no prior

3

Utopy was an assignee of the patent rights until March 2, 2006, when it assigned those rights
to Levino Ltd. See D.I. 454, Ex. M.
and months
after the issuance of the ’040 patent, during which time SRI could have sued Utopy in Delaware.

-6-

connection to this state, a proposition the Delaware Supreme Court expressly rejected. Hurwitch
v. Adams, 155 A.2d 591, 593-94 (Del. 1959) (“[I]t is said that 10 Del. C. § 8116 [now § 8117] is
plain on its face and that it applies in any action in which the defendant is a non-resident. We
think this argument, if accepted, would result in the abolition of the defense of statutes of
limitation in actions involving non-residents.”).
Section 8117 does not apply where a California claimant, like SRI, had a purported claim
that arose in California against a California defendant, like Dr. Konig, who has had no personal
connection to Delaware. It also does not apply where, as here, SRI was anything but diligent,
but rather failed to bring any action in California or anywhere else against Dr. Konig, or against
his assignees in the decade following its actual knowledge of his invention in 2001-02.
Google is essentially arguing that Section 8117 of the Delaware Code prevents SRI’s
California-based claim from ever expiring. Taken to its logical conclusion, had Google been
sued for patent infringement in 2018 and chose to then bring its counterclaims, under its tortured
interpretation of Section 8117, Delaware’s three-year statute of limitation would then start
running. Such a result would be absurd and simply cannot be correct.
Google’s reliance on Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co. is
misplaced because the defendant there—a Saudi Arabian entity (“SABIC”) who had asserted that
it was “immune from suit under the Foreign Sovereign Immunities Act”—had not previously
been amenable to service anywhere in the United States. 866 A.2d 1, 18 n.38 (Del. 2005).
SABIC only became amenable to service when it filed suit in New Jersey and an action in
Delaware Superior Court seeking a declaratory judgment that it had not overcharged its joint
venture partners over a 20-year period.

Id. at 8-10.

Defendants Exxon and Mobil filed

counterclaims alleging breach of contract and tortious conduct based upon SABIC’s 20-year

-7-

record of concealment. Id. at 10. The Superior Court rejected SABIC’s statute of limitations
defense, and Defendants appealed. Id. at 11, 14.
The Delaware Supreme Court affirmed based on its finding that there was no statute of
limitation under the laws of Saudi Arabia, and refused to apply the Delaware borrowing statute
to prevent SABIC from forum-shopping to benefit from a shorter statute of limitations on
ExxonMobil’s counterclaims. The Court also held that it would have reached the same result
based on the application of Section 8117. Id. at 15-16, 18-19. As the Court noted, SABIC only
became amenable to service in the United States by voluntarily initiating actions in Delaware and
New Jersey. See id. at 38. Those facts are clearly distinguishable from the instant case. Here, in
stark contrast, Dr. Konig always was amenable to suit in California, where SRI resided and its
claim arose, and his assignee, Utopy, was amenable to suit in Delaware. Unlike SABIC in Saudi
Basic Industries, Dr. Konig did not initiate any action in Delaware, let alone forum shop to avoid
an unfavorable statute of limitations elsewhere. Simply stated, SRI, a California resident, had
over a decade to bring its California-based claim against another California resident, Dr. Konig.
It could have even sued Dr. Konig’s assignee, Utopy, in Delaware, had it so desired. There have
been no attempts to evade service. Accordingly, Google’s argument based on Section 8117
should be rejected.
II.

GOOGLE’S STANDING DEFENSE ALSO FAILS BECAUSE PUM IS THE
ONLY OWNER OF THE PATENTS-IN-SUIT.
Summary judgment also should be granted dismissing Google’s standing defense because

neither Google nor SRI is now or ever has been a co-owner of any of the patents-in-suit. Google
does not, as it claims, “rightfully possess Konig’s ownership rights to the patents-in-suit.”
D.I. 486 at 9. All Google possesses is whatever breach of contract claims SRI may have had
under its Agreement with Dr. Konig; claims that expired long ago under any conceivable

-8-

interpretation of the statute of limitations. Because there are no patent owners who are not
joined in the suit, PUM has standing. 4
The Employment Agreement required that Dr. Konig disclose “discoveries,
improvements, and inventions,” and “execute documents” and take other steps necessary “to
effect transfer of ownership in” any discoveries subject to the Agreement. See D.I. 454, Ex. D.
Putting aside that the Agreement does not cover the invention (for all the reasons discussed in
PUM’s opening brief, D.I. 452 at 11-13), no ownership rights ever passed from Dr. Konig to SRI
because Dr. Konig never executed any documents or took any steps to transfer his ownership
rights in the patents-in-suit to SRI. Google concedes this, noting that it seeks to have the Court
“perfect Google’s ownership rights at this juncture.” D.I. 486 at 10. Because SRI did not have
any ownership rights, it never gained title to the patents-in-suit. See Bd. of Tr. of Leland
Stanford Junior Univ. v. Roche Molecular Sys., Inc., 583 F.3d 832, 841-42 (Fed. Cir. 2009)
(contract language agreeing to assign “reflects a mere promise to assign rights in the future, not
an immediate transfer of expectant interests”); DDB Techs., L.L.C. v. MLB Advanced Media,
L.P., 517 F.3d 1284, 1290 (Fed. Cir. 2008) (citation and internal quotation marks omitted)
(“Contracts that merely obligate the inventor to grant rights in the future . . . do not by
themselves vest legal title to patents on the inventions in the promisee.”). Because there was no
assignment to SRI, there was no conveyance of title to SRI, and hence none to Google. Thus, no
patent co-owners were omitted as co-plaintiffs. As the only patent owner, PUM has standing.
Although Google now seeks to “perfect” its rights to obtain co-ownership of the patents,
D.I. 486 at 10, as discussed above, any such rights have long since expired, and the Court cannot

4

Because Google admittedly has no current rights to the patents, but instead seeks to “perfect”
its stale claims, Google’s arguments about co-owner standing are irrelevant and PUM does not
pursue them further here.

-9-

revive such stale claims. Moreover, Google ignores that Dr. Konig has nothing to transfer.
Because Dr. Konig already assigned his patent rights, 5 he has no ability to assign them again to
SRI, Google, or anyone else. See, e.g., Roche, 583 F.3d at 842 (citing FilmTec Corp. v. AlliedSignal Inc., 939 F.2d 1568, 1572 (Fed. Cir. 1991) (once legal title is transferred to an assignee,
the “assignor-inventor would have nothing remaining to assign”)). Any subsequent assignment
“is a nullity.” FilmTec, 939 F.2d at 1572.
Roche, supra, provides ample support for PUM’s standing. There, the inventor had
assigned his interests twice: once to Defendant Roche, and once to Plaintiff Stanford. See 583
F.3d at 841-44. To decide standing, the Court had to determine which assignment actually
vested title to the patent. Id. It found that the inventor’s agreement with Roche provided an
immediate assignment vesting title in Roche upon conception of the invention. Id. at 842. In the
instant case, there was no assignment to SRI, so SRI never had any ownership interest in the
patents, nor does Google as SRI’s assignee.

At best SRI had an inchoate right to future

assignments that was cut-off by the earlier assignment vesting title in Utopy. Here, there is only
one chain of assignments, and there is only one patent owner: PUM.
Because PUM indisputably is the only entity with ownership rights in the patents-in-suit,
summary judgment should be granted to PUM dismissing Google’s standing defense.
CONCLUSION
For the foregoing reasons, PUM’s cross-motion for summary judgment should be granted
and Google’s motion for summary judgment should be denied.

5

See D.I. 454, Ex. M, containing assignment documents for Utopy, Levino Ltd., and PUM.

- 10 -

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Regina S.E. Murphy

OF COUNSEL:

Karen Jacobs Louden (#2881)
Jeremy A. Tigan (#5239)
Regina S.E. Murphy (#5648)
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899-1347
[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Personalized User Model, L.L.P.
and Yochai Konig

Marc S. Friedman
SNR Denton US LLP
1221 Avenue of the Americas
New York, NY 10020-1089
[phone]
Mark C. Nelson
SNR Denton US LLP
2000 McKinney Avenue, Ste. 1900
Dallas, TX 75201
[phone]
Jennifer D. Bennett
SNR Denton US LLP
1530 Page Mill Road, Ste. 200
Palo Alto, CA 94304-1125
[phone]
February 4, 2013
6984356.2

- 11 -

CERTIFICATE OF SERVICE
I hereby certify that on February 18, 2013, I caused the foregoing to be
electronically filed with the Clerk of the Court using CM/ECF which will send electronic
notification of such filing to all registered participants.
Additionally, I hereby certify that true and correct copies of the foregoing were
caused to be served on February 18, 2013, upon the following individuals in the manner
indicated:
BY E-MAIL

BY E-MAIL

Richard L. Horwitz
David E. Moore
POTTER ANDERSON & CORROON LLP
1313 N. Market St., 6th Floor
Wilmington, DE 19801

Brian C. Cannon
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
555 Twin Dolphin Dr., 5th Floor
Redwood Shores, CA 94065
Charles K. Verhoeven
David A. Perlson
Antonio R. Sistos
Andrea Pallios Roberts
Joshua Lee Sohn
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, CA 94111

/s/ Jeremy A. Tigan
Jeremy A. Tigan (#5239)