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. 2

Case 5:07-cv-00109-JMH

Document 12

Filed 08/27/2007

Page 1 of 24

graphical element was defined in such a way as to mclude text with an associated graphical
attribute (size and/or color). US Patent 6,567,830 at Col. 2, 11. 15-21 and Col. 3, 11. 7-15 (Exhibit
EE) ("The program displays lines of

text from the document and receives user inputted text. The

program generates a graphical element to include the user inputted text and generates the user

inputted text having a size capable of fitting between two lines ofthe text from the document.
The program then displays the graphical element in the document. The user inputted text within

the graphical element is displayed between two lines oftext from the document." and "In still
further embodiments, users may retrieve marking files from different human editors and

associate colors with the different marking fies to identify the editor ofthe markings. In this
way, when the user displays graphical elements including insert text and other markings from

different marking files, the user can readily identify the source ofthe marking or insert text based
on the color in which the marking or insert text is displayed.").

Accordingly, 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.
v. Receiving an indication of a first user selection of said lik

enhancement
No special construction ofthis claim is necessary because the meaning is evident from the
claim language itself: when the user selects the link enhancement, an indication is received.
vi. As a result of said first user selection, capturig said first URL

associated with said first page
Within the context ofthe claim and specification, the phrase "as a result of said first user
selection, capturing said first URL associated with said first page" means as a result ofthe first user selection, capturing, that is, remembering, the first URL associated with the first page. It is

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believed that no special construction ofthese terms is necessary because the meaning is evident

from the claim language itself
vü. Displaying a graphical element, said graphical element

associated with said captured first URL
The terms "graphical element," "associated," "captured," and "said first URL" have been
previously construed in Sections III.A.2.a (iv, iii, vi and iii respectively). Therefore, within the

context ofthe claim and specification, the phrase "displaying a graphical element, said graphical
element associated with said captured first URL" should be construed to mean "displaying a
graphically formatted element related to the URL remembered from the web page being viewed."
vii. Said graphical element adapted to cause said first page to be

displayed as a result of a second user selection of said graphical element.
This phrase should be construed to mean that the graphical element is associated with the

underlying URL so that the first page can be accessed when the user selects the graphical
element.

The interpretation given above is supported by the meanings for the claim terms
"graphical element" (see, Section III. A. 2. a.iv, supra) and "page" (see, Section III. A. 2.

a.iii,

supra). It is also supported by examples of

functionality provided in the '839 patent's

specification. For example, lines 43-55 of column 4 describe an anchor feature which:

enables users to "anchor" the page they are currently visiting. This means that Enhanced Hyperlink will store the current pages' address in memory and attach this address to a small graphical element or icon, which will

"dock" on the edge of the computer screen, which will be the user's
"anchor". Then the user can click through on a hyperlink, explore anywhere on the Internet or other hyperlinked media they desire, then when they are ready to return to the pae:e of orie:nation. or anchor pa!!e. they simply click on the "f'iichor" icon to be pr~~ented with the

pa!!e that ori!!inally contained the hyperlink that be!!an the
exploration. (emphasis added).

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Accordingly, because ofthe consistent descnption in the specification of a mechanism by which
a user may revisit the original webpage, the phrase "said graphical element adapted to cause said

first page to be displayed as a result of a second user selection of said graphical element" means
that the graphical element is associated with the underlying URL so that the first page can be
accessed via the graphical element.
b. The '839 Patent is Directly Infriged Both by Google and by

Individuals who use the Google Notebook for its Intended Purpose
In the recent case of On Demand Machine Corp. v. Ingram Industries, the Federal Circuit
approved the following statement of

the law "(i)t is not necessary for the acts that constitute

infringement to be performed by one person or entity. When infringement results from the
paricipation and combined action(s) of more than one person or entity, they

are alljoint

infringers and jointly liable for patent infringement." 442 F.3d 1331 at 1344-45 (Fed. Cir. 2006)
cert. denied, OnDemandMach. Corp. v. Ingram Indus., 127 S. Ct. 683 (U.S. 2006). In claim 26
of

the '839 patent, four basic steps are recited: (1) providing a user-selectable link enhancement

for a toolbar; (2) receiving a first user selection of said link enhancement; (3) capturing said first
URL associated with said first page; and, (4) displaying a graphical element, said graphical
element associated with said captured first URL. As described below, each of

those steps is

performed in the use ofthe Google Notebook, with Defendant performing steps 1-3, and the user
performing the final fourth step using a special plug_inl8 provided by Defendant. Thus,
Defendant is directly liable for infringement of claim 26 of

the '839 patent because, as stated in

On

Demand, "(i)nfringement ofa patented process or method canot be avoided by having

another perform one step ofthe process or method." 442 F.3d at 1345.

18 WHATIS.COM; Plug-in (May 12, 2003) (plug-in applications are programs that can easily be installed and used as

part of your Web browser) available at http://searchsmb.techtarget.com/sDefinitionlO,,sid44 gci212800,00.html (accessed August 24, 2007) (Exhibit FF.
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i. Providing a User-Selectable Link Enhancement for a Toolbar
Defendant's act of

making a Google Notebook plug-in available for download clearly

comes within the scope of

"provtding a user-selectable link enhancement for a toolbar." As

shown in Figure 3 (below), once installed on a user's computer, the Google Notebook plug-in

extension allows the user to select a new option in a toolbar which is displayed when the user
right clicks over a hyperlink

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Figure 3: Browser window with toolbar containing "Notc this itcm (Cooglc Notebook)" option. 19

Referring to Figure 4 (below), when the user selects the "Note this item (Google Notebook),"
instead of navigating to a new page, a notebook entry is created including a graphical element
related to the page the user was visiting when the user selected the option.

19 All screen shots utilized in ths document are intended as representing typical pages (in this case, various pages

associated with the Kentucky.com website) showing the intended operalion or ihe Googlc Notebook. "A screen shot is a copy or ihe screen's contents that can be saved as a graphics fie or copied into a document or graphics editor."
WHA'lIS.COM, 5,'creen 5,'hol (July 31, 20(1), hUp.//whatjs.lechtar~eLcom/derinition/O"sid9 ~ci497372,OO.html

(accessed August 24, 2(07) (Exhibil GG).
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Figure 4: Browser window with a Mini-Notebook displaying a notebook entry created by choosing "Note this item (Google Notebook)"

As set forth in section III.A.2.a.i, supra, "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. Turning to a general purpose dictionary, the modifier

"available" may mean either "1 Present and ready for use; at hand, accessible" or "2. Capable of
being gotten; obtainable" depending on the context. American Heritage Dictionary, Available
(2000) available at http://www.bartleby.com!61/26/A0542600.html (accessed August 24,2007)
(Exhibit AA).

Creating a notebook entry, as shown above, is an enhancement that does not involve

'clicking to move to a new page.' Furthermore, maintaining a web page from which the Google
Notebook browser extension can be downloaded qualifies as making the function represented by

the "Note this item (Google Notebook)" option readily obtainable. Thus, the act of "providing a
user-selectable link enhancement for a toolbar" is pedormed by Defendant in this case.

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D. The toolbar being displayable based on a location of a cursor in relation to a hyperlik in a first page in a first window of an application.
Defendant also meets the requirement of

"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 described in Section III. A.

2.a.ii, supra, this claim element means that the toolbar can become

visible when the cursor is positioned in a certain area in relation to the hyperlink. In the case of
the Google Notebook, when the user right clicks over a hyperlink, a toolbar, including a "Note

This Item (Google Notebook)" option, appears. As shown Figures 5 and 6 below, the toolbar
which is made visible when the user nght clicks over a hyperlink contains options which are
undeniably different from the options contained in the toolbar which is made visible when the
user right clicks over non-linked text.
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Figure 6: The toolbar displayed when a user right clicks over plain text in a web page.

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It should be noted that there is nothing in the claim language that precludes nght clicking

on the hyperlink. This is different from, for example, claim 1, which requires "detecting a cursor in proximity to said hyperlink." Comments made during prosecution of related patent 6,925,496
distinguished a claim which recited "detecting a cursor in proximity to a hyperlink" from a

reference which required clicking to access enhanced functionality (Newfield). However, the
limitations of

"detecting a cursor in proximity to a hyperlink" do not appear anywhere in claim

26. Instead, all that claim 26 requires is that the toolbar is displayable based on the location of

the cursor in relation to a hyperlink in a first page in a first window of an application. As is
obvious, this claim element means that the toolbar can become visible when the cursor is
positioned in a certain area in relation to the hyperlink. In the case of

the Google Notebook,

when the user right clicks over a hyperlink, a toolbar, including a "Note This Item (Google
Notebook)" option, appears.

Thus, the toolbar into which the "Note this item (Google Notebook)" option is inserted
meets the requirements of

"the toolbar bemg displayable based on a location of a cursor in
an application."

relation to a hyperlink in a first page in a first window of

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
As discussed above, this phrase means that the web page where the hyperlink appears has

a first URL, and that the hyperlink is programmed to present a second page having a second URL
to the user. As Figure 7 (below) illustrates, the first page (1) is related to a first URL (2) and a

hyperlink (3) is associated with a second URL (4) and a second page.

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iv. Wherein said user-selectable link enhancement is adapted to
display

a graphical element based on said first URL

As discussed previously, a graphical element means an element that includes some
graphical attribute.

When the user selects "Note this Item (Google Notebook)", a notebook entry appears that

corresponds to the page being viewed, that is, the first URL. Referring to Figure 8 (below), the
notebook entry includes a bolded title for the page being viewed, "Kentucky.comISports" which

is accessed by the first URL. Accordingly, the user selectable link enhancement is adapted to

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display a graphical element (the title which inc1udes a bolded graphics attributeiO based on the

first URL (title is taken trom the page having the first IJRL).
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Fii:ure 8. Displa)'ini: the connection between the bolded title in the notebook entQ' and the title of web i)ai:e associated with the first llRL. Ifthe bolded title in the notebook entr)' is clicked b)' the user, the browser wil
displa)' the i)ai:e associated with the first U RL.

v. Receiving an indication of a first user selection of said link
enhancement
The step of "receiving an indication of a first user selection of said link enhancement" is also performed by Defendant. As discussed in Section TIT.A.2,a.v, supra, this phrase may be

interpreted according to its plain meaning. As set forth below, the Defendant clearly receives an
indication that the user has selected the link enhancement.

10 Accordingly, the title is formatted text - it contains a graphics attribute, and is accordingly a "graphical element."

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As set forth on the Frequently Asked Questions page provided by Defendant for Google

Notebook, a user can access his or her notebook from any computer by logging into an account
maintained for the user with Defendant. See, Google Notebook F AQ (Exhibit K) ("You can

access your notebooks from any computer at any time. Simply log in to your Google Notebook

account from www.google.com!notebook...). Accordingly, Defendant receives an indication that
the user has activated a link enhancement. ThiS is so because otherwise Defendant would not be

able to appropriately update the information in the user's account and allow the user to access the

user's notebooks through multiple computers. Therefore, because Google allows users to access
their personal notebooks through multiple computers, Defendant performs the step of

receiving

an indication of a first user selection of

the link enhancement.

vi. As a result of said first user selection, capturig said first URL

associated with said first page
As discussed in Section III.A.2.a.vi, supra, the claim element "as a result of

said first user

selection, capturing said first URL associated with said first page" means "remembering the first

URL associated with the first page." As described previously, the notebook entry, which is
created when a user clicks "Note this item (Google Notebook)," includes a title which, when
selected by the user, causes the user's computer to display the page the user was viewing when

the user selected the "Note this item (Google Notebook)" option. This means that Defendant
must "remember" the first URL associated with the first page, because otherwise the user would
not be able to access the web page that was being viewed when the notebook entry was initially
created. Also, since the user may access the Notebook from any computer, using the account

maintained by Defendant, Defendant's system remembers the URL of

the first page so that the

user can access the notebook entry from a computer other than that which the user was using

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when the user selected "Note

this item (Google Notebook)." Accordmgly, Defendant performs

the step of

"capturing said first URL associated with said first page."

vü. Displaying a graphical element, said graphical element

associated with said captured first URL
When using the Google Notebook, the users perform this step on their computer as a
result of

utilizing the "Note this Item" link enhancement provided by Defendant. The notebook
the first page.

entry which appears in the Mini-Google Notebook includes the bolded title of

Because a "graphical element" means "an element which includes a graphical attribute," the
bolded title in the notebook entry clearly constitutes a graphical element based, at least, on its

specific formatting. Also, the bolded title in the notebook entry is unquestionably associated
with the web page being viewed, because when the bolded title is selected, that page is displayed.

Therefore, since the user's computer monitor presents a notebook entry with the bolded title
when the user clicks "Note this item (Google Notebook)," the fourth step of

the method of claim

26 is performed by the user when using Google Notebook.
vii. Said graphical element adapted to cause said first page to be

displayed as a result of a second user selection of said graphical element.
As discussed above, this claim element means that the graphical element is associated

with the underlying URL so that the first page can be accessed when the user selects the
graphical element.

As shown in Figure 9 (below), when the user selects the bolded title in a notebook entry
associated with Google Notebook, the user will be taken to the first page.

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attendance fiJ :he 1~, th time in 12 ye:u3, ac:orcing 10 t1i8 NCAA's l8C91i1lV compiled fii;ule:; for tl)e 20%-(17 S..SO" UK's sveroge crowd of23,421 .lIm led Divisiuri I
UK WILDCATS FOOTBALL
UK FOOTBALL NOTEBOOK

,om! r,rstoryf ~¿93jO.html

r- r- :rternot
1:"10 liM

'jl5Ld"lltI :JKentu.k...
756"16.

Figure 9. Displaying the browser screen after selection of the graphical element associated with the first LJRL (note, the lJRL listed in the address bar is that associated with the Kentucky.comlSports web page).

Therefore, since clicking on the graphical element associated with the first URL results in

the user being taken to that IJRL, the requirement "said graphical element adapted to cause said
first page to be displayed as a result of a second user selection of said graphical element" is met.

c. In Addition to Being Liable for Directly Infringing Claim 26 of the

"839 Patent, Defendant is Liable for Inducing Infringement by Users of the Google Notebook
35 use § 271(b) proscribes conduct that "actively induces" another to infringe a patent.
Inducement only occurs if

the party being induced directly infringes the patent. Crystal

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Semiconductor Corp. v. TritechMicroelectronics Intl, Inc., 246 F.3d 1336, 1361 (Fed. Cir.
2001).

To establish liability for inducing infringement, it is required "that the alleged infringer
knowingly induced infringement and possessed specific intent to encourage another's

infringement." DSUMedicalCorp. v. JMSCo., 471 F.3d 1293,1305 (Fed. Cir. 2006). This
section demonstrates that, in addition to being performed through the combined efforts of
Defendant and users of

the Google Notebook, the steps of claim 26 are also pedormed by the

users of

Google Notebook alone. This section also shows that Defendant has specific intent to

encourage that infringement by its users, and therefore that Defendant should be liable for
inducement of infringement.
i. Each Step Recited in Claim 26 is Perfonned by Users of

the

Google Notebook
Using the definitions set forth in Section III.A.2.a, supra, each step recited in Claim 26 is

also pedormed by the users ofthe Google Notebook. As previously discussed in Section
III.A.2.b, supra, there are four baSiC steps in claim 26: (1) providing a user-selectable link enhancement for a toolbar; (2) receiving a first user selection of said link enhancement; (3)
capturing said first URL associated with said first page; and, (4) displaying a graphical element,

said graphical element associated with said captured first URL. The following analysis focuses
on these specific steps as the construction and interpretation of

the clauses depending on these

steps has already been discussed in Sections III.A.2.a-b, supra.
While Defendant makes the interaction represented by the "Note this item (Google

Notebook)" option available by making it readily obtainable, the users ofthe Notebook make it
available by downloading the Google-furnished plug-in, which makes the mteraction ready for
use on the user's computer. The users also make the interaction represented by the "Note this

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item (Google Notebook)" available by running a browser augmented with the plug-in, which

results in the interaction being at hand for activation. Thus, the first step of claim 26, "providing
a user-selectable link enhancement for a toolbar" is performed not only by Defendant, but also by
end users of

the Google Notebook.

The step of "receiving an indication of a first user selection of said link enhancement" is

also performed by the users ofthe Google Notebook because, for the Google Notebook plug-in to
be activated when the user clicks the "Note this item (Google Notebook)" option, the user's

computer must receive an indication ofthe user's selection.
The step of "capturing said first URL associated with said first page" is also performed by
a user ofthe Google Notebook. When a user selects the "Note this item (Google Notebook)"

option a new notebook entry is displayed in the Mini-Notebook window on the user's computer.

The notebook entry includes a title which, when selected, takes the user to the page located at the

first URL. For this to take place, the notebook entry, including the first URL, is remembered by

the computer the user is using to browse the internet. Therefore, smce "capturing said first URL
associated with said first page" means remembering the first URL associated with the first page,
the user of

the Google Notebook clearly performs the third step ofthe method of claim 26.
AnalySiS showing that the users ofthe Google Notebook perform the final step of

the

method of claim 26 - "displaying a graphical element, said graphical element associated with
said captured first URL" is set forth in Section III.A.2.b. viii, supra. That analysis, combined

with the analysis in this section showing that the users ofthe Google Notebook perform steps 1-3
of claim 26, demonstrates that claim 26 ofthe '839 patent is directly infringed by users of

the

Google Notebook.

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n. Defendant Has Specific Intent That Users of the Google Notebook Infrige Claim 26

To establish liability for inducing infringement, it is required "that the alleged infringer
knowingly induced infringement and possessed specific intent to encourage another's

infringement." DSU Med., 471 F.3d at 1305. This burden can be met ifiLOR shows that the
Defendant "knew or should have known his actions would induce actual infringements." Id. at
1304 quoting

Manvile Sales Corp. v. Paramount Systems, Inc., 917 F.2d 544, 554 (Fed. Cir.
of

1990). However, "(w)hile proof

intent is necessary, direct evidence is not required; rather,

circumstantial evidence may suffce." Id. quoting Water Technologies Corp. v. Calco, Ltd., 850
F.2d 660, 668 (Fed. Cir. 1988). Indeed, if it can be shown that the accused inducer had specific

intent to induce the infringing acts, and had actual knowledge ofthe infringed patent, "intent

additionally to cause an infnngement can be presumed." NÆC Elec. Materials, Inc. v.
Mitsubishi Materials Silcon Corp., 420 F.3d 1369, n.4 (Fed. Cir. 2005). Further circumstantial
evidence which is relevant to the existence of intent to induce infringement includes "advertising
an infnnging use or instructing how to engage in an infnnging use, (both of which) show

an

affirmative intent that the product be used to infringe." DSU Medical, 417 F. 3 d at 1304 quoting
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 5125 S. a. 2764,2779 (2005).

Given the standards set forth above, it is clear Defendant has the intent required to be
liable for inducing infringement by users of Go

ogle Notebook. Given the current litigation, it is

indisputable that Defendant has knowledge of

the '839 patent.21 It is also indisputable that

Defendant has specific intent to induce the acts by which Google Notebook users infringe claim
26. On a website maintained by Defendant, under the heading of "Why do I need to download a

browser extenSion?" Defendant explains that, after downloading the Google Notebook plug-in,
21 Plaintiff filed the initial complaint the day the . 839 patent issued (April

17, 2007) and filed an amended complaint

on August 27, 2007.
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"(y)ou'll never again need to toggle between wmdows, or copy and paste mfo from your browser

window to another application." Exhibit K, i- 5. This statement shows an intent to encourage the
downloading and use of the Google Notebook extension, because relieving the user of

the

burdens associated with using a traditional browser is a significant benefit. See, '839 patent col.
6, 11. 12-17 (describing that a particular link enhancement can be beneficial based on saved user

time and effort). On the same website where Defendant explains the benefits of downloading the
Google Notebook browser extension, Defendant also tells Google Notebook users to "right-click
on the text, image or link you want and click Note this (Google Notebook) from the menu."

Exhibit K, i- 7. Since the user right clicking over a link and clicking on the Google Notebook
option in the toolbar results in a new notebook entry, which includes the URL of

the page the

user was viewing being displayed on the user's computer, and because the creation of

that

notebook entry requires receiving an indication ofthe user's selection and capturing the URL, the
instructions provided on Defendant's website and the promotion of

the Google Notebook show

defendant's actual intent to encourage the infringmg acts by the users. Therefore, based on the
rule set forth inNÆC v. Mitsubishi, Defendant's intent to cause infringement can be presumed.

B. Movant Wil Suffer Irreparable Hann Absent The Prelimiary

Injunction
"Irreparable harm is presumed when a clear showing of patent validity and infringement
has been made." Pfizer, Inc. v. Teva Pharms. USA, Inc. 429 F.3d 1364, 1381 (Fed. Cir. 2005).

This presumption reflects the fact that the "principal value ofthe patent is its statutory right to
exclude." Hybritech, Inc. v. Abbot Labs., 849 F.2d at 1456. Furthermore, ireparable harm may
be demonstrated via certain factors including that defendant's contmumg infringement will in jure

a collateral benefit provided by the patent other than a right to receive money damages, interfere

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with the plamtifts ability to control the use and licensing of

the patented technology; erode the
the

plaintiffs position in the market; encourage others to infringe, threaten the survival of

plaintiffs business; destroy the value of

the patent; and that plaintiff and defendant are direct

competitors trying to influence the same group of customers; plaintiff has spent a large sum of

money on market development; and plaintiff stands to lose a large part of its market share if
infringement is not enjoined. Jacobson v. Cox

Paving Co., 19 USPQ 2d 1641, 1653 (D. Ariz.

1991) afd 949 F.2d 404 (Fed. Cir. 1991).
As iLOR has already satisfied its burden of making a clear showing of validity for the
'839 patent and has further demonstrated infringement of claim 26 of

the '839 patent in the

foregoing sections, the Court may presume that iLOR will suffer irreparable harm without the
grant of a preliminary injunction.

Notwithstanding the presumption, which falls in iLOR's favor, iLOR can further show

that it will suffer from immediate, ireparable harm without the issuance of a preliminary
injunction. Consumers' unquestioned familiarity with the Google branding (at least through their
familiarity with the Google Search Engine at www.google.com. provides Google with a hook to

draw users to its Google Notebook application. The key to competitive advantage in internet

applications is the extent to which users add their own data. See, 0 'Reilly. See also, Affdavit at
117. Therefore, Google's continuing infringement will injure a collateral benefit provided by

the patent other than a right to receive money damages.

Additionally, a web-based company needs to generate about one billion hits a month to
reach the stage of

making an initial public offering. See, Michael Kaneiios22, The Scary Math

22 Michael Kanellos is editor at large at CNET News.com, where he covers hardware, emerging trends, start-ups and

the tech industry overseas. He has appeared on National Public Radio, The Early Show on CBS, CNBC, Fox News and other media outlets on behalf of CNET News.com as well as participated in a number of panels. See, lvfichael Kanellos Bio available at
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Behind Web 2.0 (April

17, 2007) available at http://news.com.com!8301-10784 3-9710510-

7.html?part=rss&subi=news&tag=2547-1 3-0-20 (accessed August 24,2007) (Exhibit ii)23
Google's diversion of

traffc from iLOR's website irreparably damages its ability to reach even a

reasonable fraction ofthese numbers. Therefore, Defendant's continuing infringement will

continue to erode the plaintiffs position in the market.
By mserting a method which clearly infringes the '839 patent into the market Google is

not merely taking profits away from the iLOR. Rather, it is developing relationships with
potential users and detracting from iLOR's ability to present its product to the consuming public

as one that is uniquely designed to serve its needs. A search ofthe Google Blog since the lawsuit
was originally fied to August 17, 2007, shows over 3,600 entries mentioning the Google
Notebook.24 In short, iLOR is being prevented from attaining its rightful market share in a

growing technology field.25 Therefore, Google is trying to influence the same group of

customers as the Plaintiff and plaintiff stands to lose a large par of its market share if
infringement is not enjoined.

http://www.idema.org/ smartsite/modules/news/show news.php?cmd=display&news id=1393 (accessed August 24, 2007) (Exhibit HH.
23 News.com is run by qNet which has been recognized by the NEW reviews, software and services." Rich Mieslen, The New York Times Newsroom Navigator, NEW

YORK TIMS as combining "technology news,
YORK TIMES

(February 25, 2007) available at http://tech.nytimes.com/top/news/technology/cybertimesna vigator/index.html (accessed August 24, 2007) (Exhibit JJ). 24 Search of the Google Blog for occurences of the term "Google Notebook" from April 17, 2007 through August 17,2007 at http://blogsearch.google.com/blogsearch ?as q=&num = 1 0&hl=en&c2coff= 1 &as oq=&as eq=&lr=&safe=acti ve&q =%22goog1e+notebook%22&ie=UTF8&as mind= 17 &as minm =4&as miny=2007 &as maxd= 17 &as maxm =8&as maxy=2007 &as drb=b&ctz=240& clcr=4%2FI7%2F2007&c2cr=8%2FI7%2F2007&btnD=Go (accessed August 24,2007) (Exhibit KK). "Enterprise social software is forecast to have compound annual revenue growth of 41 7% though 2011." Tom
Eid and Nikos Drakos, The Emerging Enterprise Social Softare Marketplace (abstract) (July 23, 2007) (search for

articles pertaining to social software in http://www.gartner.com/(search run August 24,2007) (Exhibit LL). Gartner
is an information and technology research and advisory firm. See, WIKIPEDIA, Gartner (August 3,2007) available at

http://en.wikipedia.org/wiki/Gartner (accessed August 24,2007) (Exhibit M:.
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If an inJunction is not issued, the erOSion suffered thus far is ireparable as iLOR will

entirely lose its foothold in the field of social search. Therefore, Google's continued

infringement threatens the survival ofiLOR's business.
Finally, as discussed in Section I (Background), iLOR's media budget was originally

directed toward promoting itself as an industry leader in forums such as the Kentucky Derby
Roundtable on Social Search.26 Elizabeth Montalbano, Prefound.com to Wed Social

Networks,

Search, INFOWORLD27 (April

12, 2006) available at

http://www.infoworld.com!archives/emailPrint. isp?R =printThis&A=/article/06/04/12/773 79 HN

prefound _l.html (accessed August 24, 2007) (Exhibit PP). See also, Affdavit at i- 8 (Exhibit R).
These efforts and dollars had to be redirected toward attempting to differentiate itself from
Google. Id. Therefore, plaintiff has spent a large sum of

money on market development to no

avail against the juggernaut of Google.
All ofthe aforementioned factors lead to the logical conclusion that if

Google's unlawful

use of iLOR's patented technology is not stopped, the continuing infringement will mterfere with
Plaintiffs ability to control the use and licensing of

the patented technology and others will be
the Plaintiffs patent. Indeed, if iLOR

encouraged to infringe which will destroy the value of

does not obtain this injunction, which would enable it to re-establish itself as the exclusive
provider of

the patented technology, iLOR will be unable to attract further investment dollars to
business. See, Affdavit at 11

keep the Prefound.com website a going concern and it will go out of

10 (Exhibit R). Furthermore, iLOR falls further and further behind in this growing market with

each day of delay. Continued waiting, to be recognized as the exclusive provide ofthe patented
26 The Kentucky Derby Roundtable (My 5-6, 2006) available at http://www.prefound.com/roundtable (accessed

August 24, 2007) (Exhibit NN.

27lNOWORLD is an information technology online media and events business operating under the umbrella of
InfoWorld Media Group, a division ofIDG (International Data Group). See, WIKIPEDIA, IrioWorld (April

30, 2007)

available at http://en.wikipedia.orglwiki/InfoWorld (accessed August 22,2007) (Exhibit 00)
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social search tool, will result m iLOR being so far behind the leaders in social software that it

will not be able to catch up. iLOR will simply cease to exist altogether. Id.
Thus, iLOR has shown ireparable harm both due to the presumption of such as well as
independently of the presumption.

C. The Balance of Hardships is Clearly in iLOR's Favor
The Court must balance the harm that will occur to the moving party from the denial

of
the injunction is

the preliminary injunction with the harm that the non-moving pary will incur if

granted. LambtonNtg. v. Young, 833 F Supp. 610,616 (W.D. Ky. 1993), citing Hybritech, 849
F.2d 1446.

The patented technology offered by iLOR is one of its principal products and a substantial

source of its overall package to leverage the field of social software. If Defendant is allowed to
continue its infringement, even for the life of

this case, iLOR's ability to promote its products
lead to an erosion of the value and enforceability of its

will be substantially impaired and will

patent. Tech watchers have already dubbed Google the "starup killer" - a 10,000 pound gorila
that squashes small companies like iLOR. See, THE 360 (Exhibit W).
Defendant, on the other hand, will suffer limited, if any, harm, if

the requested injunction

is imposed. Google's is a major publicly traded corporation having international reach and a
market value of

over $115 billion?8 Indeed, Google's business from its website exceeds $10

billion per year29, and it is reported to have billions in cash reserves.30 The injunction will not

28 Nasdaq Summary Quotes, Google, August 24, 2007,

http://quotes.nasdaq.com/asp/SummaryOuote.asp?sym bol=GOOG&selected=GOOG (accessed August 24,2007) (Exhibit QQ). 29 Ari Levy, Google Isn't Threatened by Slowdown, Economist Says (Update2), BLOOMBERG (August 24, 2007)
available at
http://www.bloomberg.com/apps/news?pid=conewsstorv&refer=conews&tkr=GOOG:US&sid=awY 5Vfh 7 .dXM

(accessed August 27,2007) (Exhibit RR). Bloomberg L.P. is the largest financial news and data company in the
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close down Defendant's operation. Rather it will merely require that Defendant cease mfringmg

and/or inducing infringement ofthe '839 patent by via features in a single, relatively new
product: Google Notebook. Furthermore, the Google Notebook is not Defendant's prime differentiator as Defendant is most readily recognized for its search engine. Finally, given
Defendant's market strength, it can almo st certainly recoup any market share dampened by the
preliminary injunction should it actually prevaiL.

In balancing the harm between denial ofthe preliminary injunction to the iLOR and
granting ofthe preliminary injunction against the Defendant, the harms faced by iLOR are
clearly greater.

D. The Public Has a Strong Interest in Enforcing Patent Rights
The public has a strong interest in enforcing the rights bestowed upon holders of

United

States Patents. A preliminary injunction that enforces a valid patent against an infringer "does

not more than further public policy inherent in the patent laws designed to encourage useful

inventions by rewarding the invention with a limited period of market exclusivity." Pfizer, 429
F.3d at 1381.

In thiS case, the public has an interest in encouraging innovators to continue to develop
more useful tools to sift through the millions of web

sites available on the Internet. By closing the

Plaintiff off from the ability to compete, the public will be offered such tools, generally, much

world. See, WIKIPEDIA, Bloomberg L.P (August 19, 2007) available at http://en.wikipedia.org/wikilBloomberg L.P.

(accessed August 27, 2007) (Exhibit SS).
11, 2006) available at http://money.cnn.com/2006/04/11/news/companies/googlecash/index.htm (accessed August 27, 2007) (Exhibit TT). CNNfn's former website now redirects to money.cn.com, a product of CNN's strategic partnership with
Money Magazine. WIKIPEDIA, CNN (August 23,2007) available at http://en.wikipedia.org/wiki/Cnn (accessed
30 Paul R. LaMonica, What Google should do with its $10 bilion war chest, CNN MONEY (April

August 27, 2007) (Exhibit UU.

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less frequently and at lower quality levels. Therefore, there is a strong mterest in protecting
patent holders in this space.

iV. Conclusion
iLOR has clearly demonstrated the existence of all four factors of

the traditional test for

obtaining a preliminary injunction.

iLOR has clearly established a reasonable likelihood of success on the merits.

iLOR has clearly illustrated that immediate irreparable harm will result ifthe relief is not
granted.
iLOR has determined that the balance of

hardships to the parties clearly weighs in iLOR's

favor.

iLOR has clearly confirmed that the public interest is best served by granting the
injunctive relief

Therefore, iLOR respectfully requests that this Court issue a preliminary injunction

against Defendant preventing it from further infringing or inducing infringement by its users by
providing and supporting the Google Notebook.
Respectfully submitted,

s/ Susan Grogan Faller Susan Grogan Faller (82812) Frost Brown Todd LLC 2200 PNC Center 201 East Fifth Street Cincinnati, OH 45202-4182 [phone] Phone [phone] Fax sfallert0fbtlaw.com

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David E. Schmit (Ohio Bar #0021147) Frost Brown Todd LLC 2200 PNC Center 201 East Fifth Street Cincinnati, Ohio 45202 [phone] Phone [phone] Fax dschmitt0fbtlaw.com
Attorneysfor Plaintif

iLOR, LLC.

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CERTIFICA TE OF SERVICE

This is to certify that on this 27th day of August, 2007, the foregoing was fied with the
clerk ofthe court by using the CM/ECF system and that a true and correct copy of

the foregoing

has been served upon Counsel for Defendant, bye-mail and overnight mail, addressed as follows:
Frank E. Scherkenbach, Esq.

Fish & Richardson P.C.

225 Franlin Street
Boston, MA 02110- 2804 scherkenbach(êfr. com Attorney for the Defendant

s/ Susan Grogan Faller

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