Personalized User Model LLP v. Google Inc.

Filing 639

STATEMENT GOOGLE'S OBJECTION TO DR. PAZZANI'S DEMONSTRATIVES AND TESTIMONY COMPARING THE ACCUSED PRODUCTS TO THE FIGURE 2 EMBODIMENT FROM THE ASSERTED PATENTS' SPECIFICATION by Google Inc.. (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

GOOGLE'S OBJECTION TO DR. PAZZANI’S DEMONSTRATIVES AND
TESTIMONY COMPARING THE ACCUSED PRODUCTS TO THE FIGURE 2
EMBODIMENT FROM THE ASSERTED PATENTS' SPECIFICATION

OF COUNSEL:
Charles K. Verhoeven
David A. Perlson
Antonio R. Sistos
Margaret Pirnie Kammerud
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
50 California St.
San Francisco, CA 94111
Tel.: [phone]
Joshua Lee Sohn
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
777 6th Street NW, 11th Floor
Washington, DC 20001-3706
Tel: [phone]
Andrea Pallios Roberts
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
555 Twin Dolphin Drive, Suite 560
Redwood Shores, CA 94065
Tel.: [phone]
Dated: March 11, 2014

Richard L. Horwitz (#2246)
David E. Moore (#3983)
Bindu A. Palapura (#5370)
POTTER ANDERSON & CORROON LLP
Hercules Plaza, 6th Floor
1313 N. Market Street
Wilmington, DE 19801
Tel: [phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant and Counterclaimant
Google Inc.

Google respectfully objects to demonstratives and testimony from PUM's infringement
expert, Dr. Pazzani, that compare the accused products to an embodiment in the Asserted Patents'
specification. "Infringement, literal or by equivalence, is determined by comparing an accused
product not with a preferred embodiment described in the specification, or with a
commercialized embodiment of the patentee, but with the properly and previously construed
claims in suit." SRI Intern. v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1121 (Fed. Cir.
1985) (en banc) (emphasis added). Dr. Pazzani repeatedly violates this rule, by comparing
Google's accused products to Figure 2 from the Asserted Patents' specification. Figure 2 is the
central roadmap for his infringement opinions, as he walks through the elements of Figure 2 to
show why Google allegedly infringes. This product-to-specification analysis is improper under
Federal Circuit law.

It is thus irrelevant under Rule 402 (because it cannot actually show

infringement) and highly prejudicial under Rule 403 (because it will mislead the jury as to what
the infringement inquiry actually requires). It should be precluded.
For example, demonstrative 111 (below) summarizes Dr. Pazzani's comparison of
Google Content Ads to the Figure 2 flowchart. Demonstratives 72 through 110 provide the
discussion of Google's accused products that culminates in the above-shown Demonstrative 111.
The actual claims are not discussed once in these thirty-nine demonstratives.

Rather than

comparing Google's products to the claims, Dr. Pazzani walks through the flowchart in Figure 2
and purports to show why Google meets each element in that flowchart.

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Even in later demonstratives, when Dr. Pazzani does purport to compare the accused
products to the claim elements, he often refers to the claim elements by the language in Figure 2
instead of the language in the claims themselves.

For example, '040 claim 1(e) requires

"estimating a probability P(u/d) that an unseen document d is of interest to the user u, wherein
the probability P(u/d) is estimated by applying the identified properties of the document to the
learning machine having the parameters defined by the User Model." As shown in the above
demonstrative, Dr. Pazzani takes the "Estimate Probability" box from Figure 2, colors it purple,
and labels it as "1(e)."

Having thus reduced claim 1(e) to the mere element "Estimate

Probability," Dr. Pazzani opines that the accused systems meet claim 1(e) because they "estimate
a probability." This is aptly illustrated by the cover demonstrative for Dr. Pazzani's opinions on
1(e):

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What follows this Demonstrative is fifty-five other demonstratives. The full language of claim
1(e) is mentioned just once in these fifty-five demonstratives. By contrast, the words "estimate a
probability" are mentioned over and over, as Dr. Pazzani compares the accused products to this
language to show that the accused products "estimate a probability."
As discussed above, the centerpiece of his infringement opinion is his comparison of
Google's accused products to the Figure 2 embodiment from the Asserted Patents' specification.
He sometimes does this directly, as in Demonstratives 72-111. He sometimes does this more
indirectly, as in his claim 1(e) demonstratives that reduce this element to the Figure 2 soundbite
of "estimate probability" and assert that Google meets this stripped-down element. But whether
done directly or indirectly, Dr. Pazzani's comparison of the accused products to Figure 2 is

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improper. It is also highly prejudicial, as the jury may be misled into thinking that a "match"
between the accused products and Figure 2 is sufficient for infringement. Accordingly, Google
respectfully requests that all testimony comparing the accused products to Figure 2 be precluded.

Respectfully submitted,
OF COUNSEL:
Charles K. Verhoeven
David A. Perlson
Antonio R. Sistos
Margaret Pirnie Kammerud
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
50 California St.
San Francisco, CA 94111
Tel.: [phone]
Joshua Lee Sohn
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
777 6th Street NW, 11th Floor
Washington, DC 20001-3706
Tel: [phone]

POTTER ANDERSON & CORROON LLP

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.

Andrea Pallios Roberts
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
555 Twin Dolphin Drive, Suite 560
Redwood Shores, CA 94065
Tel.: [phone]
Dated: March 11, 2014

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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 March 11, 2014, 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 March 11, 2014, the attached document was Electronically
Mailed to the following person(s):
Karen Jacobs Louden
Jeremy A. Tigan
Regina S.E. Murphy
Morris, Nichols, Arsht & Tunnell LLP
1201 North Market Street, 18th Fl.
P.O. Box 1347
Wilmington, DE 19899-1347
[e-mail]
[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
Dentons US LLP
1530 Page Mill Road, Ste. 200
Palo Alto, CA 94304-1125
[e-mail]

Mark C. Nelson
Richard D. Salgado
Steven M. Geiszler
Dentons US LLP
2000 McKinney, Suite 1900
Dallas, TX 75201
[e-mail]
[e-mail]
[e-mail]

Andrew M. Grodin
Dentons US LLP
101 JFK Parkway
Short Hills, NJ 07078
[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]

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