Personalized User Model LLP v. Google Inc.

Filing 531

MOTION for Leave to File Reply Brief in Support of Google's Motion for Reconsideration, with Exhibit 1 and Certificate of Service - filed by Google Inc.. (Attachments: # 1 Exhibit 1)(Moore, David)

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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, LLP and YOCHAI KONIG Counterdefendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 09-525-LPS JURY TRIAL DEMANDED MOTION FOR LEAVE TO FILE REPLY BRIEF IN SUPPORT OF GOOGLE’S MOTION FOR RECONSIDERATION By this motion, Google respectfully seeks leave to file a Reply in support of its Motion for Reconsideration, so that Google has the opportunity to respond to arguments that PUM raised in its September 30 Opposition to the Motion for Reconsideration – arguments that PUM had not previously raised in opposing Google’s underlying summary judgment motion. Google’s Motion for Reconsideration argued that the Court made a clear legal error in holding that ambiguities over the contractual term “conception” create a question of fact where there is no conflicting extrinsic evidence. Google argued that any ambiguities over this term should be resolved as a matter of law by the Court. (D.I. 523) PUM’s Opposition raises three new arguments for why, if the Court agrees that there are no issues of fact because there is no conflicting extrinsic evidence, the Court should interpret “conception” according to PUM’s favored patent-law definition. These three new arguments are: (1) conception should be defined in the patent-law sense because the Konig-SRI relationship involved highly technical work; (2) conception should be defined in the patent-law sense because ambiguous language should be resolved against the drafter under Cal. Civ. Code § 1654; and (3) conception should be defined in the patent-law sense because only upon patent-law conception did Dr. Konig acquire patent rights. (D.I. 530 at 5-7.) While PUM previously presented other arguments in favor of its patent-law definition (which Google has previously addressed), PUM never raised these new arguments in its prior papers or at the summary judgment hearing. As PUM itself acknowledges, however, new arguments are not proper in the context of a Motion for Reconsideration. (D.I. 530 at 3.) That is particularly true given that PUM had ample opportunity to present these new arguments before, they were not a response to anything new from Google’s Motion, Google has never had an opportunity to address them, and, without leave, Google would not be permitted to do so in a Reply supporting its Motion for Reconsideration. Thus, these new arguments should not be considered at all. Should the Court consider these arguments, however, Google respectfully requests leave to file a Reply to address them. It is important, and only fair, that Google be allowed to respond to these new arguments so that the Court has both parties’ positions on all legal principles that could affect how “conception” is interpreted. Accordingly, Google respectfully requests that the Court grant Google leave to file the proposed Reply, attached hereto as Exhibit 1. Pursuant to D. Del. LR 7.1.1, counsel for Google contacted counsel for PUM to request PUM’s position regarding this Motion. PUM will oppose this Motion. 2 Respectfully submitted, POTTER ANDERSON & CORROON LLP OF COUNSEL: Charles K. Verhoeven David A. Perlson Joshua Lee Sohn Antonio R. Sistos Margaret Pirnir Kammerud QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California St. San Francisco, CA 94111 Tel.: (415) 875-6600 Andrea Pallios Roberts QUINN EMANUEL URQUHART & SULLIVAN, LLP 555 Twin Dolphin Drive, Suite 560 Redwood Shores, CA 94065 Tel.: (650) 801-5000 By: /s/ David E. Moore Richard L. Horwitz (#2246) David E. Moore (#3983) Bindu A. Palapura (#5370) Hercules Plaza, 6th Floor 1313 N. Market Street Wilmington, DE 19801 Tel: (302) 984-6000 Attorneys for Defendant Google Inc. Dated: October 2, 2013 1124770 / 34638 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CERTIFICATE OF SERVICE I, David E. Moore, hereby certify that on October 2, 2013, the attached document was electronically filed with the Clerk of the Court using CM/ECF which will send notification to the registered attorney(s) of record that the document has been filed and is available for viewing and downloading. I further certify that on October 2, 2013, the attached document was Electronically Mailed to the following person(s): Karen Jacobs Louden Jeremy A. Tigan Morris, Nichols, Arsht & Tunnell LLP 1201 North Market Street, 18th Fl. P.O. Box 1347 Wilmington, DE 19899-1347 Marc S. Friedman Dentons US LLP 1221 Avenue of the Americas New York, NY 10020-1089 Jennifer D. Bennett Matthew P. Larson Dentons US LLP 1530 Page Mill Road, Ste. 200 Palo Alto, CA 94304-1125 Mark C. Nelson Robert Needham Dentons US LLP 2000 McKinney, Suite 1900 Dallas, TX 75201 /s/ David E. Moore Richard L. Horwitz David E. Moore Bindu A. Palapura POTTER ANDERSON & CORROON LLP (302) 984-6000 932168 / 34638

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