Personalized User Model LLP v. Google Inc.

Filing 532

RESPONSE to Motion re 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 Personalized User Model LLP. (Murphy, Regina)

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

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Plaintiff,
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v.
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GOOGLE, INC.,
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Defendant.
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______________________________________ )
GOOGLE, INC.,
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Counterclaimant,
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v.
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PERSONALIZED USER MODEL, L.L.P.
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and YOCHAI KONIG,
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Counterclaim-Defendants.
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C.A. No. 09-525 (LPS)

PUM’S OPPOSITION TO GOOGLE’S MOTION FOR LEAVE TO FILE A REPLY
BRIEF IN SUPPORT OF GOOGLE’S MOTION FOR RECONSIDERATION
Google's motion for leave to file a reply reconsideration brief is Google's fourth attempt
at summary judgment. The first was its original summary judgment motion, the second its
pending Motion for Reconsideration, the third Google’s extraneous legal argument contained in
the Joint Status Report (D.I. 529) to which PUM objected, and the fourth its motion for leave to
present additional arguments in an unauthorized reconsideration reply brief. Like in its motion
for reconsideration, Google improperly rehashes old arguments, and even improperly introduces
new ones, in its "never-ending polemic between the litigants and the Court.”1 In its proposed
reconsideration reply brief, Google goes a step further and asks the Court to grant Google

1

Dentsply Int’l, Inc. v. Kerr Mfg. Co., 42 F. Supp. 2d 385, 419 (D. Del. 1999) (quoting
Oglesby v. Penn Mutual Life Ins. Co., 877 F. Supp. 872, 892 (D. Del. 1995)).

summary judgment on PUM’s statute of limitations defense, despite never having moved on
that defense or even having mentioned it in its motion for reconsideration.2 Google’s brand
new arguments are improper and should be rejected.
For several reasons PUM respectfully requests that Google’s motion for leave to file a
reconsideration reply brief be denied.
First, like its motion for reconsideration, Google’s motion for leave and its proposed
reconsideration reply brief fail to demonstrate that the Court committed clear legal error in
finding that “there is a question of fact as to whether the parties intended at the time of
contracting to use the lay or legal definition.” Mem. Op., D.I. 521, at 15. Google notably does
not explain why the extrinsic evidence to which PUM points is “irrelevant” to the parties’
objective contractual intent, particularly where that evidence contradicts what Google contends
was Dr. Konig’s subjective (but legally irrelevant) understanding of “conception.” See D.I. 531,
Ex. 1 at 1, 3.3
Second, in an attempt to justify its fourth bite at the apple, Google contends that PUM
improperly raised new arguments in its opposition to the motion for reconsideration. Again,
Google is wrong. PUM clearly argued in its summary judgment opposition that the patent law
meaning of “conception” should be applied. See PUM Summary Judgment Resp. Br., D.I. 452,
at 9-11. In fact, although Google now argues that the definition of patent conception articulated

2

PUM’s opposition to Google’s motion for summary judgment, D.I. 452, raised the Delaware
statute of limitation in opposition to Google’s request for summary judgment on its
ownership and breach of contract claims. See also PUM’s Reply to Google’s Amended
Counterclaims, D.I. 217, at ¶59. Not only did Google not move for summary judgment on
PUM’s statute of limitation defense, it did not address either that defense or Section 2870 of
the California Labor Code in its reconsideration motion. It cannot do so now as a basis for
asking the Court to grant summary judgment in Google’s favor.

3

Indeed, were Google’s position adopted, the meaning of this form contract would vary based
on the subjective (but unspoken) belief of the employee.
2

in Burroughs Wellcome “is not true,” D.I. 531 Ex. 1 at 4, Google itself relied on that case in its
summary judgment reply. See Google Reply Br., D.I. 493, at 4 (quoting Burroughs Wellcome
Co. v. Barr Labs., Inc., 40 F. 3d 1223, 1228 (Fed. Cir. 1994)) (“[c]onception is complete only
when the [idea] is so clearly defined in the inventor’s mind that only ordinary skill would be
necessary to reduce the invention to practice [, without extensive research or experimentation].”).
Google then criticizes PUM for citing section 1654 of the California Civil Code. But
PUM did so to rebut an argument that Google improperly raised for the first time in its motion
for reconsideration. See PUM’s Resp. to Google’s Motion For Reconsideration, D.I. 530, at 4-8.
Specifically, Google argued that California contract law requires that an ambiguity be resolved
as a matter of law by the Court in the absence of conflicting extrinsic evidence. See D.I. 523.4
PUM’s response brief referenced other relevant California contract interpretation principles,
which Google ignored, that belie Google’s contention that any ambiguity should be resolved in
its favor. See D.I. 530 at 4-8.
Third, Google’s assertion, in a proposed reply reconsideration brief, that the Court should
now address the issue of the statute of limitation - and the applicability of Section 2870 of the
California Labor Code - is both untimely and improper. As noted above, Google did not seek

4

In its proposed reconsideration reply brief, Google again emphasizes that “the Agreement
was between two California citizens, was signed in California, and governed an employment
relationship taking place in California” (D.I. 531 Ex. 1 at 1 n. 2). But Google nonetheless
ironically asks the Court to apply the Delaware tolling statute, 10 Del. C. § 8117, to this
California based-dispute, because Dr. Konig, who was not a party to this patent suit, agreed
to accept service in Delaware to avoid duplicative litigation. See D.I. 486 at 6-8. Were
Google correct, any party could revive a stale claim merely by bringing it in a forum having
nothing to do with the parties’ dispute, thus eviscerating the statute of limitation. That is
precisely the result that the Delaware borrowing statute was intended to avoid. See 10 Del.
C. § 8121 (“Where a cause of action arises outside of this State, an action cannot be brought
in a court of this State to enforce such cause of action after the expiration of whichever is
shorter, the time limited by the law of this State, or the time limited by the law of the state or
country where the cause of action arose, for bringing an action upon such cause of action.”).
3

summary judgment on the statute of limitation and cannot do so now in the guise of
reconsideration.
For all these reasons, PUM respectfully requests that Google’s motion be denied.

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Regina S.E. Murphy
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]
OF COUNSEL:

Attorneys for Personalized User Model, L.L.P.
and Yochai Konig

Marc S. Friedman
DENTONS US LLP
1221 Avenue of the Americas
New York, NY 10020-1089
[phone]
Mark C. Nelson
DENTONS US LLP
2000 McKinney Avenue, Ste. 1900
Dallas, TX 75201
[phone]
Jennifer D. Bennett
DENTONS US LLP
1530 Page Mill Road, Ste. 200
Palo Alto, CA 94304-1125
[phone]
October 7, 2013
7622358

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CERTIFICATE OF SERVICE
I hereby certify that on October 7, 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 October 7, 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/ Regina S.E. Murphy
Regina S.E. Murphy (#5648)