Personalized User Model LLP v. Google Inc.

Filing 622

REPLY BRIEF re 611 MOTION in Limine TO PRECLUDE GOOGLE FROM REFERRING TO RECENT CHANGES IN THE ACCUSED TECHNOLOGY filed by Personalized User Model LLP, Konig Yochai. (Jacobs, Karen)

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

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

REPLY IN SUPPORT OF PUM’S MOTION IN LIMINE TO PRECLUDE GOOGLE
FROM REFERRING TO RECENT CHANGES IN THE ACCUSED TECHNOLOGY
OF COUNSEL:
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]
March 5, 2014

MORRIS, NICHOLS, ARSHT & TUNNELL LLP
Karen Jacobs (#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

Argument or evidence that Google no longer uses (or plans to stop using) accused
functionalities will confuse and prejudice the jury. The jury will likely believe Google has
stopped using the patented technology, that current or future versions of Google’s products do
not infringe, and that the patented technology must not have been important to Google’s success.
This is why Google wants to introduce such evidence.

Resp. at 2. But there is no reason to

believe the replacement technology does not also infringe. Although Google asserts it no longer
uses or plans to use certain accused functionalities, PUM cannot now evaluate whether Google
has actually changed its functionality or still infringes without discovery. PUM thus does not
have a meaningful opportunity to rebut Google’s argument. This is not shifting the burden to
Google to prove non-infringement, but acknowledging that PUM has not had the opportunity to
determine what these changes actually mean. Further, any such changes are not relevant because
they do not address the commercial success of these products when introduced, and damages are
for another day.

Further, any minimal relevance is outweighed by the prejudice to PUM.1

The timing of Google’s disclosures is not coincidental. Google told PUM that it had
replaced the Kaltix twiddler with the “Merlin” twiddler in 2012, but refused to produce
documents unless PUM would agree to further delay the case.

Google then sat on this

information for two years without supplementing its production, only to produce documents
eight days ago that purportedly show it no longer uses the rephil, category navboost, or session
profilers. Had these changes actually been material, however, Google had a duty to seasonably
supplement under Rule 26(e) in 2012, not on the eve of trial. Google should not be allowed to
benefit from the uncertainty caused by its own delay.
1

Google’s argument that it may need to reference the changes so witnesses can provide
“truthful answers” is a diversion. There are less prejudicial ways to do so and that is a far
cry from arguing, as Google proposes, that Google’s cessation of using accused
instrumentalities shows the patented technology was not important to Google’s success.
1

MORRIS, NICHOLS, ARSHT & TUNNELL LLP

/s/ Karen Jacobs

OF COUNSEL:
Marc S. Friedman
DENTONS US LLP
1221 Avenue of the Americas
New York, NY 10020-1089
[phone]

Karen Jacobs (#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

Mark C. Nelson
Richard D. Salgado
DENTONS US LLP
2000 McKinney Avenue, Suite 1900
Dallas, TX 75201
[phone]
Jennifer D. Bennett
DENTONS US LLP
1530 Page Mill Road, Suite 200
Palo Alto, CA 94304-1125
[phone]
March 5, 2014

2

CERTIFICATE OF SERVICE
I hereby certify that on March 5, 2014, 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 March 5, 2014, 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/ Karen Jacobs
Karen Jacobs (#2881)