Function Media, L.L.C. v. Google, Inc. et al

Filing 255

SUR-REPLY to Reply to Response to Motion re 192 MOTION Motion to Limit the Number of Asserted Claims filed by Function Media, L.L.C.. (Grinstein, Joseph)

Function Media, L.L.C. v. Google, Inc. et al

Doc. 255

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION
FUNCTION MEDIA, L.L.C.,
$ $

Plaintiff,
vs.

s
$ $ $ $ $ $

Civil Action No. 2007-CV-279

GOOGLE' INC. AND YAHOO,INC.,
Defendants.

JURY TRIAL DEMANDED

PLAINTIFF'S SUR-REPLY TO GOOGLE'S REPLY IN SUPPORT OF THEIR MOTION TO LIMIT THE NUMBER OF ASSERTED CLAIMS
FM has three simple points to make in surreply to Google's motion to limit FM's claims

attrial.
First, the Eastern District authority Google attaches to its reply brief curiously contradicts Google's own point. This Court's order in Crane Co. v. Sandenvendo Am.,1nc., No. 2:07-CY042 (Ex.

A to Google's Reply), limited the plaintiff to 50 claims per defendant, far more than the

18 claims being asserted by FM

here. Likewise,

Judge Folsom's order in Data Treqsury Corp'

v. tlells Førgo & Co., No. 2:06-CV-072 (Ex. B to Google's Reply), limited the plaintiff to 50
total claims, and no more than 18 against any group of defendants. Google has certainly located
caselaw about the general issue of a plaintiffls asserting too many claims, but its authority does

not support its contention that FM's 18 asserted claims are excessive. Indeed, despite FM's
invitation to do so in its opposition brief, Google fails in reply to point out anything about FM's

18 asserted claims specifically that make them particularly burdensome to try as a group.
Google's insistence upon just 5 claims is simply arbitrary.

99

2082v

I I 08 426 -0 I

0020

Dockets.Justia.com

Second, Google's outright refusal itself to be limited to four prior art references (Google

Reply, at 3 n.3) calls into question the credibility of its supposed concerns about trial effrciency.

If

anything, one additional prior art reference requires more time and attention at trial than one

additional claim, given that the claims tend to share the same general characteristics whereas

prior art references each look completely different. Yet, despite claiming that FM's 18 claims

will

cause all sorts of trial management concems, Google hedges as to its prior art, offering only

that it might voluntarily drop references

if FM were limited to 5 claims.

Google's bid to limit
an

FM's asserted claims is therefore simply a transparent effort to limit Google's liability, not
attempt to promote judicial efficiency.

Third, Google labels as "outrageous" FM's demand for separate trials for its 18 claims,

if

it is limited in the first trial to just 5 claims. But in attempting to rebut FM's

demand, Google

cites caselaw for the proposition that due process permits a plaintiff s claims to be limited

if

the

plaintiffls asserted claims are duplicative. See In re Katz Interactive Call Processing Patent Lrtig.,No. 2:07-mI-01816-RGK-FFM (Ex. C to Google's Reply), at 3 ("By providing examples and pointing out the common genealogy of
disclaimers, the defendants make

þlaintiffs]

patents and numerous terminal

a convincing

showing that many

of the claims

are

duplicative."). Here, Google has made no attempt To analyze the 18 claims asserted by FM to
show that FM pursues duplicative

relief. To summarily dismiss FM's due process rights as to

duly-issued patent claims surely requires more.

This Court should therefore deny Google's motion.

99

2082v

I I 08

426 -0 1 0020

Respectfu

lly submitted,

/s/ Joseph S. Grinstein Max L. Tribble, Jr. State Bar No. 20213950 Email : [e-mail] SUSMAN GODFREY L.L.P. 1000 Louisiana, Suite 5100 Houston, Texas, 77002 Telephone: [phone] Facsimile: (7 13) 654-6666
Lead Attorney for

Plaintiff

OF COTINSEL: Joseph S. Grinstein State Bar No. 24002188 Aimée Robert State Bar No.24046729 SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77 002-5096 Telephone: [phone] Fax: [phone] j grinstein@susmango dfrey. com arobert@susmango dfrey. com

Jeremy Brandon State Bar No. 24040563 Warren T. Burns State Bar No. 240531 19 SUSMAN GODFREY L.L.P. 901 Main Street, Suite 5100 Dallas, Texas 7 5202-377 5 Telephone: [phone] Fax: [phone] j brandon@susmangodfrey. com wburns@susmangodfrey. com

Justin A. Nelson State Bar No.24034766 SUSMAN GODFREY L.L.P.

992082v I I 08 426-0 I 0020

1201 Third Avenue, Suite 3800 Seattle, Washington 98 I 0 1 -3000 Telephone : [phone] Fax: [phone] j nelson@susmangodfrey. com

Robert Christopher Bunt State Bar No. 00787165 Charles Ainsworth PARKER, BLINT & AINSWORTH, P.C. 100 East Ferguson, Suite 1114 Tyler, Texas 75702 Telephone: [phone] Fax: [phone] [e-mail] [e-mail]
S. Calvin Capshaw State Bar No. 037839000 Elizabethl-. DeRieux State Bar No. 05770585 D. Jeffrey Rambin

CAPSHAW DERIEUX, LLP Energy Centre
1127 Judson Road, Suite 220 P.O. Box 3999 (75606-3999) Longview, Texas 7 5601-5157 Telephone: [phone] Fax: [phone] ccapshaw@ capshawlaw. com ederieux@capshawlaw. com j rambin@capshawlaw. com

Otis Canoll State Bar No. 03895700 Collin Maloney State Bar No. 00794219 IRELAND, CARROLL &,I<ELLEY, P.C. 6101 S. Broadway, Suite 500 Tyler, Texas 75703 Telephone: [phone] Fax: [phone] otiscarroll@icklaw. com [e-mail]

4
992082v I I 08 426 -0 | 0020

CERTIFICATE OF SERVICE I hereby certify that on November 5,2009,I electronically filed the foregoing document with the clerk of the court for the U.S. District Court, Eastern District of Texas, using the electronic filing system of the court. The electronic case filing system sent a "Notice of Electronic Filing" to the attomeys of record who have consented in writing to accept this Notice
as service of this document by electronic means'

/s/ Joseph S. Grinstein Joseph S. Grinstein

992082v

1

I 08 426-01

0020