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)

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.

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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.

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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.: [phone]
Andrea Pallios Roberts
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
555 Twin Dolphin Drive, Suite 560
Redwood Shores, CA 94065
Tel.: [phone]

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: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant Google Inc.

Dated: October 2, 2013
1124770 / 34638

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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
[e-mail]
[e-mail]

Marc S. Friedman
Dentons US LLP
1221 Avenue of the Americas
New York, NY 10020-1089
[e-mail]

Jennifer D. Bennett
Matthew P. Larson
Dentons US LLP
1530 Page Mill Road, Ste. 200
Palo Alto, CA 94304-1125
[e-mail]
[e-mail]

Mark C. Nelson
Robert Needham
Dentons US LLP
2000 McKinney, Suite 1900
Dallas, TX 75201
[e-mail]
[e-mail]
/s/ David E. Moore
Richard L. Horwitz
David E. Moore
Bindu A. Palapura
POTTER ANDERSON & CORROON LLP
[phone]
[e-mail]
[e-mail]
[e-mail]

932168 / 34638