iLOR, LLC v. Google, Inc.

Filing 12

MOTION for Preliminary Injunction by iLOR, LLC (Attachments: # 1 Memorandum in Support Part 1# 2 Memorandum in Support Part 2# 3 Proposed Order # 4 Exhibit A# 5 Exhibit B# 6 Exhibit C# 7 Exhibit D# 8 Exhibit E# 9 Exhibit F# 10 Exhibit G# 11 Exhibit H# 12 Exhibit I# 13 Exhibit J# 14 Exhibit K# 15 Exhibit L# 16 Exhibit M# 17 Exhibit N# 18 Exhibit O# 19 Exhibit P# 20 Exhibit Q# 21 Exhibit R# 22 Exhibit S# 23 Exhibit T# 24 Exhibit U# 25 Exhibit V# 26 Exhibit W# 27 Exhibit X# 28 Exhibit Y# 29 Exhibit Z# 30 Exhibit AA# 31 Exhibit BB# 32 Exhibit CC# 33 Exhibit DD# 34 Exhibit EE# 35 Exhibit FF# 36 Exhibit GG# 37 Exhibit HH# 38 Exhibit II# 39 Exhibit JJ# 40 Exhibit KK# 41 Exhibit LL# 42 Exhibit MM# 43 Exhibit NN# 44 Exhibit OO# 45 Exhibit PP# 46 Exhibit QQ# 47 Exhibit RR# 48 Exhibit SS# 49 Exhibit TT# 50 Exhibit UU)(Faller, Susan)

iLOR, LLC v. Google, Inc.

Doc. 12 Att. 1

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY LEXING TON DIVISION

iLOR, LLC
Plaintiff,
v.

CIVIL ACTION NO. 5:07-cv-00109-JMH Chief Judge Joseph M. Hood

GOOGLE, INC.

Defendant.

iLOR's MEMORANDUM IN SUPPORT OF ITS MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF AUTHORITIES....................................................................................................... ii
i. BACKGROUND............................................................................................................. 1

II. LEGAL FRAME WORK................................................................................................. 7 III. ARGUMENT.................................................................................................................. 8
A. Plaintiff Can Demonstrate a Clear Showing of Reasonable Likelihood of Success

on the Merits . ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 8

B. Movant Will Suffer Irreparable Harm Absent the Preliminary Injunction .......... 31
C. The Balance of

Hardships is Clearly in iLOR's Favor .....................................35

D. The Public Has a Strong Interest il Enforcing Patent Rights ............................. 36 IV. CONCLUSION............................................................................................................. 37
CERTIFICATE OF SERVICE.................................................................................................. 38

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TABLE OF AUTHORITIES FEDERAL CASES
Apex Inc., v. Raritan Computer, Inc., 325 F.3d 1364 (Fed. Cir. 2003) ..........................10

Byrne v. Black & Decker Corp., 2006 WL 1117685; 2006 u.s. Dist. LEXIS
27, 2006) aff'd, Byrne v. Black & Decker Corp. 2007 WL 492101 (Fed. Cir., May 21, 2007) .................................................................. 10
24104 (E.D.KY, April

DSU Medical Corp. v. JMS Co., 471 F.3d 1293 (Fed. Cir. 2006) ...........................28, 30

Guttman, Inc. v. Kopykake Enters., 302 F.3d 1352 (Fed. Cir. 2002) ...............................8
Hybritech, Inc. v. Abbott Labs., 849 F.2d 1446 (Fed. Cir. 1988) .........................8, 31, 35

InnovaiPure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111 (Fed. Cir. 2004) ..................................................................................................... 10
Iron Grip

Barbell Co. v. USA Sporls, Inc., 392 F.3d 1317 (Fed. Cir. 2004) ....................9

Jacobson v. Cox

Paving Co., 19 USPQ 2d 1641 (D. Ariz 1991) aff'd949 F.2d 404 (Fed. Cir. 1991) ............................................................................................. 32

Johnson Worldwide Assocs. v. Zebco Corp., 175 F.3d 985 (Fed. Cir. 1999) ...................9
LambtonMfg. v. Young, 833 F. Supp. 610, 616 (W.D. Ky. 1993) ................................ 35

Lopes v. IntlRubber Distributors, Inc., 309 F.Supp. 2d 972 (N.D.OH, February
5, 2004) .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 10

Manvile Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544 (Fed. Cir. 1990) ........ 30
Markman v. Westview Instruments, Inc., 52 F.3d 967 (Fed. Cir. 1995), aff'd, 517
U. S. 370 (1996) . ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 10

NÆC Elec. Materials, Inc. v. Mitsubishi Materials Silcon Corp. 420 F.3d 1369
(Fed. Cir. 2005) .. ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 30, 31

Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 US 913 (2005) .................. 30
Novo Nordisk ofN.Am., Inc. v. Genentech, Inc., 77 F3d 1364 (Fed. Cir. 1996) ...............8
On Demand

Machine Corp. v. Ingram Industries, 442 F.3d 1331 (Fed. Cir. 2006)

cert. denied On Demand Mach. Corp. v. Ingram Indus., 127 S. a. 683 (D. S.

2006) ..................................................................................................................... 18
In re Paulsen, 30 F.3d 1475 (Fed. Cir. 1994) ............................................................... 10
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Pfizer, Inc. v. TevaPharms. USA, Inc., 429 F.3d 1364,1381 (Fed. Cir. 2005) .......31,36

PHG Technologies, LLC v. Timemed Labeling Systems, 2006 WL 2670967; 2006 u.s. Dist. LEXIS 66828 (M.D.TN, September 18,2006) .....................................8,9

Philips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) .........................................10, 11
Polymer Techs. v. Bridwell, 103 F.3d 970 (Fed. Cir. 1996) .........................................8,9

Purdue PharmaL.P v. Boehringer Ingelheim, GNfH, 237 F 3d 1359 (Fed. Cir.

2001) ....................................................................................................................... 9
Smith Intl v. Hughes Tool Co., 718 F.2d 1573 (Fed. Cir. 1999) ...................................... 9

Water Technologies Corp. v. Calco, Ltd., 850 F.2d 660 (Fed. Cir. 1988) .....................30

FEDERAL STATUTES
35 U. S. C. § 101 .............................................................................................................. 7 35 U . S.C. § 112 .............................................................................................................. 7 35 U. S. C. § 271 ( a) .......................................................................................................... 7 35 U.S.C. § 271(b) .................................................................................................. 7, 27 35 U. S.C. § 283 .............................................................................................................. 7

ADMINISTRATIVE GUIDELINES
Manual of

Patent Examining Procedure, § 719 (USPTO, 8th Edition Revision 5,

August 2006; accessed August 13, 2007)

http://www.uspto.gov/web/offces/pac/mpep/documents/0700719.htm#sect7
19 .. .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. . .. ... 7

DICTIONARIES
The American Heritage Dictionary of

the English Language )ittp://www.bartleby.com/61/) (4th ed., Boston: Houghton Miffin, 2000, accessed August 13, 2007) ..................................................................................... 20

EXHIBITS

A. US Patent 7,206,839.
B. WIKIPEDIA, Social Software, available at

http://en.wikipedia.org/wiki/Social software (accessed August 24, 2007)

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C. Tim O'Reilly, What Is Web 2.0 - Design Patterns and Business Modelsfor
the Next Generation of Software, 9/30/2005,

http://www.oreillynet.comllpt/a/6228 (visited August 24, 2007).

D. WIKIPEDIA, Danny Sullivan available at

http://en wikipedia.org/wiki/Danny Sullvan (technologis( (accessed
August 24, 2007).
E. About Search Engine Watch -

http://searchenginewatch.comlshow Page.html ?page=about (accessed August
24, 2007).
F. About Incisive Media http://www.incisivemedia.comlpublic/show Page.html ?page= 1133 8

(accessed August 24, 2007).
G. Danny Sullivan, iLOR Makes Google Even Better, SEARCH ENGINE WATCH
(April

19, 2001) available at http://searchenginewatch.coml2163651/print

(accessed August 24, 2007).

H. About MarketWatch available at http://www3.ll....ketwatch.comlsiteinfo/
(accessed August 24, 2007).
I. Bambi Francisco, Google Going Verlical, MARKETW A TCH (May 11, 2006)

available at
http://www.marketwatch.comiN ews/Story/Story. aspx?guid=% 7B 174948FE-

E62F-40E5-846A-4C0948CC45B3%7D (accessed 8/24/2007).
J. Answers.com, beta: DefinilonandMuchMorefromAnswers.com, June 7,

2004, available at http://www.answers.comltopic/beta-

definition?cat=technology&pnnt=true (accessed August 24,2007).
K. Google Notebook F AQ available at

http://www.google.comlgooglenotebooklfaq.html (accessed August 24,
2007).
L. Google Notebook Tour available at

http://www.google.comlgoo glenote boo klto ur 1.html (accessed August 24,
2007).

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M. Google Notebookfrom Google Labs, (May 10,2006) available at
http://www.google.com!intl/ en/press/pressre Vnew tech.html (accessed

Auguat 24, 2007).

N. Whatis.coni Browser (September 25, 2006) available at
http://searchvb. techtarget. com! sDefinition/O "sid8 gci21170 8, 00 .html

(accessed August 24, 2007).
O. Burt Helm, Google 's Desktop Offensive, BUSINESS WEEK (May 11, 2006)

available at
http://www.businessweek.com!print/techno lo gy/ content/may2006/tc20060 5
11_ 493243.htm (accessed August 24,2007).

P. About the Motley Fool available at

http://www.fool.com!Server/printarticle.aspx&file=/press/about.htm
(accessed August 24, 2007).
Q. Rick Aristotle Munarriz, Google 's Sticky Litle Fingers, THE MOTLEY FOOL

(May 11, 2006) available at
http://www.fool.com!server/printaricle .asp x?fie=/investing/value/2006/05 /

l1/googles-sticky-little-fingers.aspx (accessed August 24, 2007).
R. Affdavit of Stephen

Manifeld (August 27, 2007).

S. 5 Questions with PreFound.com CEO Steve Manifeld, REPRISE MEDIA

(May 24, 2006) available at
http://www.searchviews.com!index. php/ archives/2006/0 5/ 5-questions- with-

prefoundcom-ceo-steve-mansfield. phpprint/ (accessed August 24, 2007).
T. About Reprise Media, available at http://www.reprisemedia.comlabout.aspx

(accessed August 24, 2007).
u. About Susan Kuchinskas, available at

http://'''''''¥-,yuá' (accessed August 24, 2007).
v. About Us ICJvj, available at http://www.cmp.com!about/index.ihtml

(accessed August 24, 2007).
w. Susan Kuchinskas, Prefound on Competing with Google, THE 360 (Oct. 27,

2006) available at http://36Otechblog.com!prefo und-on-competing - with-

google/2006/1O/27/ (accessed August 24, 2007).

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x. Google Goes Multi-Lingual, THE OFFICIAL GOOGLE BLOG (March 29, 2007)

availab le at http://googleblog. blo gspot. com!2007 1031 google-note book- goes-

multi-lingual.html (accessed August 24, 2007).

Y. Manual of Patent Examining Procedure §719 (USPTO, 8th Edition
Revision 5, August 2006) available at

http://www.uspto.gov/web/offces/pac/mpep/documents/0700719.htm#sect
719 (accessed August 24, 2007).

Z. THE 360, About the 360, available at http://36Otechblog.com!about/
(accessed August 24, 2007).

AA. American Heritage Dictionary (2000) available at http://www.barleby.çom!61/26/A0542600.html (accessed August 24,2007).
BB. WHA TIS.COM, URL, November 27, 1999,

http://we b.archive .org/we b/20000407183 83 5/http://www.whatis.com!

(visited August 24, 2007).

CC. Offce Action mailed January 28, 2004 (reJecting application 09/594,786).

DD. Response to January 28, 2004, Offce Action regarding 09/594,786.

EE. US Patent 6,567,830.
FF. WHATIS.COM; Plug-in (May 12,2003) available at

http://searchsmb. techtarget.com!sDefinition/O"sid44 gci212800,00 .html

(accessed August 24, 2007).
GG. WHATIS.COM, Screen Shot (July 31,2001), available at

http://whatis.techtarget.com!definition/O..sid9 gci 497372,00.html (accessed
August 24, 2007).

HH. Michael Kanellos Bio available at

http://www.idema.org/ smarsite/modules/news/show news.php?cmd=displ
ay&news_id=1393 (accessed August 24,2007).
II Michael Kanellos, The Scary Math Behind Web 2.0 (April

17, 2007)

available at http://new,,.com.com!8301-10784 3-9710510-

7.html?part=rss&subi=news&tag=2547-1 3-0-20 (accessed August 24,
2007).

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JJ. Rich Mieslen, The New York Times Newsroom Navigator, NEW YORK TIMES

(February 25, 2007) available at
http://tech.nytimes .com!top/news/techno lo gy / cybertimesna vigator/index. html

(accessed August 24, 2007).
KK. Search of the Google Blog for occurrences of

the term "Google Notebook" from

April

17, 2007 through August 17, 2007 at

http://blogsearch.google .com!b logsearch?as q =&num= 1 0&hl=en&c2co ff= 1 &as oq
=&as eq=&lr=&safe=active&q=%22 goo

gle+notebook%22&ie=UTF -

8&as mind=l7&as minm=4&as miny=2007&as maxd=17&as maxm=8&as max

y=2007 &as. =2 F F 7%2
tnD=Go (accessed August 24, 2007).

LL. Tom Eid and Nikos Drakos, The Emerging Enterprise Social Software
Marketplace (abstract) (July 23, 2007) (search for articles pertaining to

social software in http://www.garner.com!(search run August 24,2007).
MM.WIKIPEDIA, Garner (August 3,2007) available at http://en.wikipedia.org/wiki/Gartner

(accessed August 24, 2007).

NN. The Kentucky Derby Roundtable (May 5-6, 2006) available at
http://www.prefound.comlroundtable (accessed August 24, 2007).
00. WIKIPEDIA, InfoWorld (April30, 2007) available at

http://en.wikipedia.org/wiki/lnfoWorld (accessed August 24,2007).
PP. Elizabeth Montalbano, Prefound.com to Wed Social Networks, Search,
INFOWORLD (April

12, 2006) available at

http://www.infoworld.com!archivei-/emailPrint. isp?R =printThis&A=/article/

06/04/12/77379 HNprefound l.html (accessed August 24, 2007).
QQ. Nasdaq Summary Quotes, Google, August 24, 2007,

http://quotes.nasdaq.com!asp/SummaryQuote. asp ?symbo l=GOOG&selected

=GOOG (accessed August 24, 2007).

RR. Ari Levy, Google Isn't Threatened by Slowdown, Economist Says
(Update2), BLOOMBERG (August 24, 2007) available at

http://www.bloomberg.com!apps/news ?pid=conewsstory&refer=conews&tk

r=GOOG:US&sid=awY5Vfh7.dXM (accessed August 27,2007). ............................

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ss. WIKIPEDIA, Bloomberg L.P (August 19,2007) available at

http://en.wikipedia.org/wiki/Bloomberg L.P. (accessed August 27, 2007).

TT. Paul R. LaMonica, What Google should do with its $10 bilion war chest,
CNN MONEY (April

11, 2006) available at

http://money.cnn.com!2006/04/11/news/companies/googlecash! index. htm

(accessed August 27,2007).
UU. WIKIPEDIA, CNN (August 23, 2007) available at

http://en.wikipedia.org/wiki/Cnn (accessed August 27,2007).

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iLOR'S MEMORANDUM IN SUPPORT OF ITS

MOTION FOR PRELIMINARY INJUNCTION

Plaintiff requests that this Court preliminarily enjoin Google from using or inducing
others to use the Google Notebook in a manner which infringes claim 26 of

U.S. Patent

7,206,839. Accordingly, for its Motion for Preliminary Injunction pursuant to Fed.R.Civ.P 65,
the Plaintiff iLOR, LLC ("iLOR"), states as follows:

I. Back!!round
Since its founding in 2000, PlaintiffiLOR has been a technology innovator in the field of
utilizing the Internet, particularly via hyperlinks. 1 Tools in this field will be critical to the larger
picture of

social software such as MySpace .http://www.myspace.com. Social software is a

label which is generally applied to web-enabled software programs which allow users to interact,
share, and/or meet with other users? Social software is a key component of

the even bigger

picture ofthe Web 2.0 movement which rose from the ashes of

the dot.com era.3 Plaintiff

applied for a patent for a social software tool as early as May 4, 2000, the fiing date ofthe U. S.
4
Provisional Application No. 60/202,029 from which the patent-in-suit claims priority.

Early

on, industry watchers recognized iLOR as a pioneer. "Check out the site. The

features are useful, enough so that you'll probably wonder why they aren't available at Google
text or a computer graphic that a user can "click" with the mouse pointer, which will immediately load a new browser page that the hyperlin is programmed to present to the user." US Patent 7,206,839, Co!. 1,11.24-28 (Exhibit A).
( xhib t B). 3ETimiO'Reilly, What Is Web 2. 0 - De:signPatterns and Business Modelsfor the Next Generation of Software
i "A hyperlink is simply a string of

2 WIKIPEDIA, Social Software, available at http://en.wikipedia.org/wiki/Social software (accessed August 24,2007)

(9/30/2005) available athttp://www.oreillynet.com/lpt/a/6228(accessedAugust24.2007).(TimO.Reilly is the founder and CEO of O'Reilly Media, Inc., a prolific publisher of computer books.) (hereinqfter, 0 'Reily) (Exhibit
CA 4 ). provisional patent application is an abbreviated version of a full or non-provisional application which allows an

inventor/applicant to secure a filing date for up to one year to determine whether or not they wish to commit the resources to file a non-provisional application. See, 35 U.S.C. 111(b).
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itself" Danny Sullivan,5 iLOR Makes Google Even Better, SEARCH ENGINE W A TCH6 (April

19,

2001) available at http://searchenginewatch.com!2163651/print (accessed August 24,2007)
(Exhibit G).

But in 2006, MARKETWATCH7 reported Google's interest in community-based searching,

an application of social software, in an interview with Eric Schmidt, CEO of Google. Bambi
Francisco, Google Going Vertical, MARKETW A TCH (May 11, 2006) available at

http://www.marketwatch.comlN ews/Story/Story. aspx?guid=% 7B 174948FE- E62F -40E5-846A-

4C0948CC45B3%7D&print=true&dist=printTop (accessed 8/24/2007) (Exhibit I).

Google, now interested in the social software movement, launched a beta version8 ofa

product called the Google Notebook on May 15, 2006. Google Notebook provides a small
window, the "Google Mini-Notebook," in which users can exploit the Internet via hyperlinks.

Users may store information in the Google Mini-Notebook by clicking the right mouse button

while the cursor is positioned on a hyperlink on a webpage. The user may then select the "Note

this Item" option which will store a notebook entry relatmg to the currently viewed webpage. An
example of a Mini-Notebook with a notebook entry taken from a website maintained by Google

5 Danny Sullivan is the founder of Search Engie Watch and a prolific writer and speaker in the field of internet
search engines. See, WIKIPEDIA, Danny Sullvan available at

http://en.wikivediaorg/wiki/Danny Sullivan (technologist) (accessed August 24,2007) (Exhibit D).
(i "Search Engie Watch provides tips and information about searching the web, analysis of

the search engine

industry and help to site owners trying to improve their ability to be found in search engines." http://searchenginewatch.com/showPage.html?page=about (accessed August 24, 2007). (Exhibit E). Search Engie Watch is currently owned by Incisive Media, a leading provider of business information to the UK personal finance industry. See generally, http://www.incisivemedia.com/public/showPage.html?page= 11338 (accessed August 24, 2007) (Exhibit F). 7 Marketwatch.com is operated by MarketWatch, Inc., a wholly-owned subsidiary ofDow Jones & Company. See,
About Market 8 A "beta" version of a program is a version of

Watch available at http://www3.marketwatch.com/siteinfo/ (accessed August 24,2007) (Exhibit H). the program which is made available to specific users for testing
nsers.

puroses before the program's release. Answers.com, beta: Definition and Much More from A

com, June 7,

2004, available at http://www.answers.com/topic/beta-definition ?cat=technologY&IJrint=true (accessed August 24, 2007) (Exhibit J).

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is set forth as Figure I (below). The Mini-Notebook provides a user-friendly way to utilize the
Internet via hyperlinks because it allows users to save information regarding web pages they have
visited or wish to visit at a later date.9
Google Notebook Tour

. Noteboks

r Cü i i .~..nlt=..i
A Buyers Guida

I Toos I Save

.-

æ I:Q'.i:()-i3.!j'....",().u~in.êì~", T
Timbuktu Bike Zon"
Welcome", the Timbuktu Blka ZO, your sourc...

~
" Typ.

Notebook

1

en try

Figui'c 1. An cxcmplary' Mini-Notchool... 10

The Google Notebook has been heavily promoted by Google and has received significant

media attention. Google featured the Google Notebook in its May 2006 press release:
Google Notebook is a simple way for users to save and organize their thoughts when conducting research online. This personal browser11 tool permits users to
clip.. links from the pages they're browsing, save them to an online "notebook"

and share them with others.

Goog/e Notehookfrom Goog/e ¡,ahs, (May 10, 2006) available at http://www.google.com/intl/en/press/pressrel/new tech.html (accessed August 24, 2007) (Exhibit M).

The press release noted how the tool fit into social software by encouraging the sharing of results
across a community of

users. Id. The Google Notebook was also featured in BusINSS WEEK12

r) Coogle J'v'otebook FAQ -r 1-3, 7 available at http://ww\v.google.coinlgooglenotebook/faq.html (accessed August

24, 2(07) (Exhibil K). 10 Coogle Notebook Tour available at http://w\vw.google.com/googlenotebook/tourLhtml (accessed August 24,

2(07) (Exhibil L). 11 "A browser is an application program that provides a way to look at and interact with all the iiûofliiation on the

World Wide Web." WHA'lis.cm'l, /Jrowser (Sepleniber 25,2(06) available at hUp:llsearchvb.techtar~eLconi/sDelìniton/O,.sidg ~ci211708.00.htnil (accessed AiigiiSI 24, 2(07) (Exhibil N). i Burt Helm, Coogle's Desktop Offnsive, BCSINESS WEEK (May 1 L 2006) available at
hUp:llwww. biisinessweek.coni/print/lechnolo~v/content!may 2006/tc20060511 493243 .htm) (accessed A iigliSI 24, 2(07) (Exhibil 0).
c!',i .¡brary 0111 ()')().054')gg') i 75%59v2(,

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and THE MOTLEY FOOL. 13 The latter article, which includes the Google Notebook, emphasized
Google's ability

to use its size to compete even in areas where it was not the innovator. Rick

Aristotle Munarriz, Google 's Sticky Little Fingers, THE MOTLEY FOOL (May 11, 2006) available

at http://www.fool.com!server/printaricle. asp x?fie=/investing/value/2006/0 5/ 11/ goo gles-stickylittle-fingers.aspx ("Not all of

the new offerings are unique to Google, but they all bear checking

out because of the hu!!e Internet audience that the search kin!! commands. ") (emphasis

added) (accessed August 24, 2007) (Exhibit Q).

Following the beta release of Google Notebook and as the Google Notebook received more publicity, iLOR's efforts were directed away from promoting its tools and significant time

was expended to assure the media that it was still viable even though Google was offering an
identical service. Affdavit of Stephen

Manifeld at 118 (August 27, 2007) (Exhibit R). Google's

beta release devastated a planned media campaign in progress by iLOR which had been directed

at establishing iLOR's place as an industry leader. Id. The goal ofiLOR's media campaign was
to establish enough momentum to achieve a self-sustaming critical mass of

users. Id. Google

Notebook's entrance on the scene, however, forced iLOR to engage in damage control tactics in
the face of

Google's overwhelming market power. Id.
MARKETW A TCH, itself, on the heels ofthe Google Notebook launch, characterized

Google as the new giant in social search. See, Google Going Vertical (Exhibit I). ilOR
attempted to distinguish itself 5 Questions with PreFound.com CEO Steve Mansfield, REPRISE
MEDIA 14 (May 24, 2006) available at

13 THE MOTLEY

FOOL is a multimedia financial education company. Since 1996, in partnership with Simon and
WEEK'S best-seller list.

Schuster, eight Motley Fool books have been published which have all climbed to BUSINESS

THE MOTLEY FOOL'S nationally syndicated weekly newspaper column debuted in 1997 and now appears in more

than 200 papers. About the Motley Fool available at http://www.fooL.com/Server/printarticle.aspx?file=/press/about.htm (accessed August 24,2007) (Exhibit P). i Reprise Media develops strategic, integrated search marketing campaigrs that help the world's largest brands

generate revenue and drive traffic to their websites. The company has been recogrized as a leader in the search
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http://www.searchviews.com!index. php/ archives/2006/0 5/ 5-questions- with-prefoundcom-ceo-

steve-mansfield.phpprint/ (accessed August 24, 2007) (Exhibit S). But others questioned
whether Pre

Found could even compete with Google. Infuential bloggers asked "Now that
is it all over for

Google, the 'web 2.0 starup killer', is moving into social search territory

starups like... PreFound?" Susan Kuchinskasl5, Prefound on Competing with Google, THE

36016 (Oct. 27, 2006) available at http://36Otechblog.com!prefound-on-competing-with-

google/2006/10/27/ (accessed August 24, 2007) (Prefound.com is the website developed by the

Plaintiff iLOR) (Exhibit W).
Google continued to develop its Notebook and the product left beta phase on March 29,

2007. This was highlighted in the offcial Google Blog: "In case you haven't heard about it
before, Google Notebook lets you conveniently collect, organize and share information while
searching and browsing the web. If you've tried it already, I urge you to try again, as its new
interface is much smoother to use than it was. ,,17

In danger oflosing its fragile foothold in the social search space, iLOR focused on
prosecuting its pending patent application, covering its hyperlink technology, which issued as

marketing field by a broad range of independent parties including Forrester Research, Jupiter Research, OMM
Magazine and even Google. See, About Reprise Media available at http://www.repriseri.' labout.aspx

(accessedKuchinskas is a former editor of THE 360. She has also co-authored Going Mobile - Building the real-time 15 Susan August 24,2007) (Exhibit T).
enterprise with mobile applications that work, and she has published two reports (Profiting from Option Rich
Networks and Gettng in the Wireless Game: Opportunities and Technology is a part of

Entr Points) for CMP Technology. CMP

news distribution and specialist information services for the professional and enthusiast markets, actively bringing buyers and sellers together across targeted media channels-publications, events and online. Ms' Kuchinskas work has also appeared in Technology Review, Wired, the Los Angeles Times and Business 2.0. See, About Susan Kuchinska"
United Business Media (www.unitedbusinessmedia.com). a leading global provider of

http://www.kuchinskas.com/aboutus.html (accessed August 24, 2007) (Exhibit U) and About Us IClvj,

http://www.cmp.com/about/index.ihtml (accessed August 24,2007) (Exhibit '0. i THE 360 takes an analytical, in-depth look at the way that the Internet industry's largest players and most
inovative newcomers are shaping the future. It tracks the technology, business models and interdependencies of

the

next generation of internet companies. See, THE 360, About the 360, http://360techblog.com/about/ (accessed August 24, 2007) (Exhibit Z).
17 Google Goes Multi-Lingual, THE OFFICIAL GoOGLE BLOG (March 29, 2007) available at

http://googleblog.blogspot.com/2007 1031 google-notebook -goes-m ulti-linguaL.html (accessed August 24, 2007) (Exhibit X).
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u.s. Patent No. 7,206,839 on April

17, 2007 ("the '839 patent"). The '839 patent covers a novel

and valuable method for enhancing a hyperlink that is currently being utilized in Google
Notebook and by users ofthe Google Notebook.

This patent represents iLOR's only chance to exclude Google from continuing to

unlawfully erode iLOR's market position. As is recognized by O'Reilly, "One ofthe key lessons
of the Web 2.0 era is this: Users add value." See, O'Reily

(Exhibit C). Without users, asocial
users will "go

search site is virually useless. Affdavit at 11 7 (Exhibit R). A small percentage of

to the trouble of adding value" to a social site via explicit means (publishing their favourite links
to the rest of the world). See, 0 'Reily (Exhibit C). But the social site itself

will also include

means for "aggregating user data and building value as a side-effect of ordinary use of

the

app lication the systems ... get better the more people use them." I d. (emphasis added). In

order for a social site that is dependent on users aggregating data to really become successful, it

must offer users easily accessible online tools to assist them in aggregating the data. Affdavit at
11 7 (Exhibit R). Further, it is critical that the tools that are offered are so easy to use and helpful
to these users that the tools become intrinsic to the browsing process itself

for these users. Id.

But, given Google's almost instant name recognition compared to iLOR, Defendant will

soon render iLOR a non-entity in social search through the presence ofthe Google Notebook, by
luring users away from iLOR s website, unless iLOR can prevent Google from using its patented
technology. Ifthe infringement is stopped, then iLOR can engage in a marketing campaign to re-

establish its position as an innovator for social search and attact users to its website. Affdavit at
11 9 (Exhibit R). This will, in turn, improve the overall operation ofthe website as noted by

O'Reily. However, ifDefendants infringement continues unabated, iLOR, whose user base has
been usurped by Google, will soon be locked out of an entire market - a market in which it is an

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innovator and patent holder. Id at 11 10. Therefore, iLOR seeks this preliminary injunction to

stop Google's infringement ofiLOR's patent.

II. Le!!al Framework
Plaintiff

has sued Defendant for infringement of its '839 patent. A patent is the grant of a

property right to the inventor, issued by the United States Patent and Trademark Offce

("USPTO"). 35 U.S.C. § 101. Each patent includes one or more claims which paricularly point
out and claim the subject matter which the inventor regards as his invention, and a written

description which sets forth how to make and use the claimed invention. 35 U.S.C. § 112.

Together, the claims and written description are referred to as the patent's specification. Id.
Before any patent is issued, it is rigorously examined by the USPTO to ensure that patents are
only granted for inventions which are new, useful, and unobvious. The record of

communications between the patent offce and the inventor during examination is called the

patent's "prosecution history" or "fie wrapper" See generally, Manual of Patent Examining
Procedure §719 (USPTO, 8th Edition Revision 5, August 2006) available at

http://www.uspto.gov/web/offces/pac/mpep/documents/0700719.htm#sect719 (accessed
August 24, 2007) (Exhibit Y). Once a patent has been granted, whoever uses the patented
invention without the permission of

the patent holder is liable as an infringer. 35 U.S.C. §271(a).

Further, anyone who actively induces infringement is also liable as an infringer. 35 US.C. §
271(b).

The Patent Act authorizes courts "(t)o grant injunctions in accordance with the principles
of equity to prevent the vio lation of any right secured by patent, on such terms as the court deems
reasonable." 35 U.S.C. § 283. The grant or denial of an injunction is an act of equitable

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discretion by

the distnct court. Guttman, Inc. v. Kopykake Enters., 302 F.3d 1352, 1356 (Fed.

Cir. 2002) citing Novo Nordisk ofN. Am., Inc. v. Genentech, Inc., 77 F.3d 1364, 1367 (Fed. Cir.

1996). As the moving party, iLOR must establish its right to a preliminary injunction in light of
a clear showing of

four factors:

(1) the movant has suffciently established a reasonable likelihood of success on the merits; (2) immediate ireparable harm will result if the relief is not granted, (3) the balance ofhardships to the
paries weighs in the movant's favor; and (4) the public interest is

best served by granting the injunctive relief.
Polymer Techs. Inc. v. Bridwell, 103 F.3d 970,973 (Fed. Cir. 1996) followed by PHG

Technologies, LLC v. Timemed Labeling Systems, 2006 WL 2670967; 2006 U. S. Dist. LEXIS

66828 (M.D.TN. 2006). See also, Atlas Powder Co. v. Ireco Chemicals, 773 F.2d 1230 (Fed.
Cir. 1985) and also, J-Star Industries, Inc. v. Oakley, 720 F.Supp 1291, 1295 (W.D. Mich. 1989)

(standard for review is a clear showing). "These factors, taken individually, are not dispositive,
rather, the district court must weigh and measure each factor against the other factors and against
the form and magnitude ofthe relief requested.

" Hybritech, Inc. v. Abbott Labs., 849 F.2d 1446,

1451 (Fed. Cir. 1988).

III. Ar!!ument
As discussed below, iLOR can establish its right to a preliminary injunction in light of

the

four factors set forth above.

A. Plaintiff Can Demonstrate a Clear Showing of Reasonable Likelihood of Success on the Merits
To obtain a preliminary injunction, the movant must establish a clear showing of, at least,
a "reasonable likelihood of success on the merits." Polymer, 103 F.3d at 973 citing Hybritech~

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849 F.2d at 1451, andfollowed by PHG Techs., 2006 WL 2670967 at 8; 2006 US. Dist. LEXIS 66828 at 25-26. Likelihood of success on the merits is established by demonstrating that a
patent is likely valid and has been infringed. Polymer, 103 F.3d at 973, citing Smith IntI. v.
Hughes Tool Co., 718 F.2d 1573, 1581 (Fed. Cir.), cerl. denied, 464 u.s. 996 (1983). Only

one

claim need be infringed to prove infringement ofa patent. Johnson Worldwide Assocs. v. Zebco

Corp., 175 F.3d 985, 988 (Fed. Cir. 1999). For purposes ofthe present motion, as set forth
below, iLOR can demonstrate that claim 26 of

the '839 Patent is valid and has been infringed.

1. The '839 Patent is Clearly Valid
Patents are entitled to a statutory presumption of

validity, and a challenger to the validity

of a patent must demonstrate invalidity by clear and convincing evidence. 35 US. C. § 282.
While iLOR bears the burden of proof

for establishing a likelihood of success on the merits, if
the

Defendant does not provide any persuasive evidence of invalidity, then "the very existence of

patent satisfies. . . (the Plaintiff s) burden on validity." Purdue P harm

a L.P. v. Boehringer

Ingelheim, GNfH, 237 F.3d 1359, 1365-66 (Fed. Cir. 2001) rehearing en banc denied by

Purdue

PharmaL.P. v. Boehringer Ingelheim GNfH, 237 F.3d 1359 (Fed. Cir. 2001). See also, Iron
Grip Barbell Co. v. USA Sporls, Inc. 392 F.3d 1317, 1340 (Fed. Cir . 2004). In this case, in light
of

the extremely thorough review, at the USPTO, ofthe '839 patent and applications related to

the '839 patent, Defendant will not be able to provide persuasive evidence of invalidity.
Therefore, in view ofthe presumption of validity of

the '839 patent, iLOR has clearly satisfied
success" test.

the validity prong ofthe "reasonable likelihood of

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2. Claim 26 of the' 839 Patent is Clearly Infriged
The assessment ofthe likelihood of infringement of a valid patent for purposes of a
preliminary injunction, like a determination of patent infringement at a later stage of litigation,

requires a two-step analysis. Lopes v. Intl. Rubber Distributors, Inc., 309 F Supp. 2d 972, 979
(N.D.Ohio. 2004) citing Markman v. Westview Instruments, Inc., 52 F.3d 967, 970-71 (Fed. Cir.

1995), aff'd, 517 U.S. 370 (1996). First, the Court determmes, as a matter oflaw, the correct
meaning and scope of

the asserted claims. Markman, 52 F.3d at 970-71. Then, the Court

compares the properly construed claims to the accused device or method to determine, as a
matter 0 f fact, whether all of the limitations of at least one claim are present. Byrne v. Black &
Decker Corp.,2006 WL 1117685 at *3, 2006 u.s. Dist. LEXIS 24104 at *8 (E.D. KY. 2006)

aff'd2007 WL 1492101; 2007 US App. LEXIS 12000 (Fed. Cir. 2007).
In construing claims, there is a "strong presumption that claim terms carry their ordinary
meaning as viewed by one of ordinary skill in the art." Apex Inc. v. Raritan Computer, Inc., 325

F.3d 1364, 1371 (Fed. Cir. 2003). However, "(p )roperly viewed, the 'ordinary meaning' of a
claim term is its meaning to the ordinary artisan after reading the entire patent." Phillips v. AWH

Corp., 415 F.3d 1303, 1321 (Fed. Cir. 2005). When determining the ordinary meaning of claim
language, resort may be had to sources including "the words of

the claims themselves, the

remainder of

the specification, the prosecution history, extrinsic evidence concerning relevant
the ar." Philips, 415 F 3d

scientific principles, the meaning oftechnical terms, and the state of

at 1314 citing InnovaiPure Water, Inc. v. Safari Water Filtration Systems, Inc., 381 F.3d 1111

(Fed. Cir. 2004). An applicant is also entitled to rebut the presumption that claim terms are to be
given their ordinary and customary meaning by clearly setting forth a definition of

the term that

is different from its ordinary

and customary meaning(s). In re Paulsen, 30 F.3d 1475, 1480 (Fed.

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Cir. 1994). Finally, "(d)ictionaries or comparable sources are often useful to assist in
understanding the commonly understood meaning of

words." Philips, 415 F.3d at 1322.

The following sections provide the Court with the correct meaning and scope of claim 26
of

the '839 patent and then compare that claim to the acts performed in the downloading and use
the Google Notebook to show that Google and its users are liable for infringing that claim.

of

a. Claim Construction
Claim 26 ofthe '839 Patent is directed to a method for enhancing a hyperlink.

26. A method for enhancing a hyperlink, comprising providing a userselectable link enhancement for a toolbar, the toolbar being displayable
based on a location of a cursor in relation to a hyperlink in a first page in a first window of an application, wherein said first page is associated with a first uniform resource locator (URL), wherein said hyperlink is associated
with a second URL and a second page, wherein said user-selectable link

enhancement is adapted to display a graphical element based on said first

URL; receiving an indication of a first user selection of said link
enhancement; and as a result of said first user selection, capturing said

first URL associated with said first page; and displaying a graphical
element, said graphical element associated with said captured first URL, said graphical element adapted to cause said first page to be displayed as a result of a second user selection of said graphical element.
Each claim limitation will be defined and applied to the Google Notebook.

i. Providing a user-selectable lik enhancement for a toolbar
In the '839 patent, "providing a user-selectable link enhancement for a toolbar" means

making available a function in a toolbar, for example, an option inserted into the toolbar, which
enhances a hyperlink by making it possible to do something with that hyperlink other than
clicking to move to a new page. This interpretation is supported by both the specification of

the

'839 patent, and the dictionary definitions of

the claim terms. Regarding the specification, the

'839 patent makes clear that the invention is intended to allow the user to pedorm additional

interactions with a hyperlink. For example, the '839 patent states that "there is a need for an
improved hyperlink that provides the user with the ability to do more with a hyperlink than click
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to move to a new page. The present mvention solves this problem by providing an enhanced

hyperlink that provides the user the ability to choose additional interactions with the hyperlink
(beyond c licking and moving to a new page)." '839 Patent at co L. 2, ll. 21-29.

The '839 patent specification also provides multiple examples of enhancements such as

"check out later" and "anchor," among others. '839 patent, col. 4, 11. 10-55. Consistent with the
interpretation provided above, each of

those enhancements provides the user with the ability to

do more with a hyperlink than click to move to a new page.
The specification also explicitly defines a "toolbar," and provides examples of

using a

link enhancement with a toolbar which are consistent with the interpretation provided above. In

the '839 patent, a "toolbar" is defined as "any graphic user interface presented to users as part of
an Enhanced Hyperlink." '839 patent col. 3, 11. 25-26. With relation to lin enhancements,

toolbars are disclosed which display options that are selected to utilize link enhancements. E.g.,
'839 patent, col. 5, 11. 46-47 ("With the tool bar displayed, the user may select which link
enhancement they desire to utilize, if any. "); col. 8, 11. 20-22 ("The toolbar provides one method

for the user to select the paricular link enhancement that the user desires to utilize. "). This
indicates that a link enhancement "for a toolbar" is one which is represented by an option
inserted into the toolbar.

Accordingly, "providing a user-selectable link enhancement for a toolbar" should be understood to refer to making available a function in a toolbar, for example, an option inserted into the toolbar, which enhances a hyperlink by making it possible to do something with that
hyperlink other than clicking to move to a new page.

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ii. The toolbar being displayable based on a location of a cursor in relation to a hyperlink in a first page in a first window of an application.
As used in the '839 patent, this phrase means that the toolbar containing the Itnk

enhancement, as defined above, can become visible when the cursor is positioned in a certain
area in relation to the hyperlink.

This interpretation is clearly supported by the '839 patent's specification. As a concrete
example of this, consider figure 2 of

the '839 patent, reproduced below for the sake of

convenience. "FIG. 2 (of

the '839 patent) ilustrates a sample toolbar that may be displayed by

the invention of

FIG. I " Co!. 3, 11. 3-4. Figure I illustrates an exemplary flow chart in which a

user selects a hyperlink "by moving a cursor either 'over' or near a hyperlink that the user wishes

to select." Co1. 5,11. 36-38. Once the hyperlink is selected "the program displays a toolbar

which illustrates the link enhancements available for that paricular hyperlink." Col. 5, lL 38-40.

( ~4id

-,

12

~

\'ilch
Illlm"a1ri~ aie

"pin

IN

-

Wij

\l\\\\et

Ho

oll""

Particular link
a tl

in portoliU

SI0.imil

enhancement(s) in

toolbar appearing in

HoHn...

relation to the hyperlink
id
Currenl u.s.
Ftatvred Maps

Figure 2: Copy of Figure 2 of

the '839 Patent.

As shown in figure 2, the lmk enhancements shown might include "contact me later," "send
reminder," or "check out later." Thus, the specification of

the '839 patent supports the

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construction that "the toolbar bemg displayable based on location of a cursor in relation to a
hyperlink" means that the toolbar, containing the link enhancement, can become visible when the
cursor is positioned in a certain area in relation to the hyperlink.

ÜI. Wherein said first page is associated with a first unifonn resource locator (URL); wherein said hyperlink is associated with a second URL and a second page
This phrase should be interpreted to mean that the web page where the hyperlink appears
has a first URL, and that the hyperlink is pro grammed to present a second page having a second
URL to the user.

The claim term "page" is explicitly defined as "any web page, electronic document, fie,
screen display, or other location a user may access with a hyperlink." '839 patent at col. 3, 11. 29-

30. Referring to a technical dictionary, the term "URL" should be understood to refer to the
location of

an Internet resource, for instance, the address ofa web page. See, WHATIS.COM, URL,

(November 27, 1999) available at
http://we b.archive. org/we b/20000407183 83 5/http: //www.whatis.com!( visited August 24, 2007)
(Exhibit BB).

Accordingly, this phrase should be construed to mean that the web page where the
hyperlink appears has a first URL, and that the hyperlink is pro grammed to present a second page

having a second URL to the user.

iv. Wherein said user-selectable lik enhancement is adapted to display a graphical element based on said first URL
As set forth below, this phrase should be construed to mean that the link enhancement is

designed to display an element that includes some graphics attribute and that the element is based
on the first URL. The term "first URL" is construed in Section III. A.

2.a.iii, supra, to be the URL

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of

the first page. "Graphical element" means an element that includes some graphics attribute;

that is, it is not purely textual.
The best indication of the meaning of

the term "graphical element" as used in claim 26

comes from the language used in patents which are related to the '839 patent, and from the

arguments made while those patents were being examined by the Patent Offce. For example, the
examiner assigned to related u.s Patent No. 6,925,496 ('496 patent) explained, in a rejection

mailed on January 28, 2004, that a prior art reference taught "displaying pending links and some
associated graphical elements such as colors." Offce Action at 3 (January 28,2004) (rejecting

application 09/594,786) (Exhibit CC). Thus, a "graphical element" should be construed in a
manner which includes colors.
Also, statements made during examination of

related patents help define the term what does not fall within the scope of a "graphical

"graphical element" by providing examples of

element." For example, the Patent Offce rejected a claim which included the phrase "copying
any associated graphical elements corresponding to the hyperlink." Id. In the Applicant's

response, it was explained "As taught by Newfield - the associated graphical element

corresponding to the hyperlink is not copied to the second window." See, Response at 5 (to

January 28, 2004, Offce Action regarding 09/594,786) ("Exhibit DD"). Thus, because simply
copying text, without any formatting elements (e.g., color), does not constitute copying a
graphical element, a graphical element should be defined in a manner which excludes a bare

unformatted text string. In other words, the claim uses the term "graphical element," not merely

"graphics." In any event, unformatted text is not "graphics."
Finally, this construction is further supported by resort to extrinsic evidence, that is, the

way other inventors used the term "graphical element" around the time the '839 patent was

originally fied. For instance, in a patent issued to International Business Machines (IBM), a
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