Polaris IP, LLC v. Google Inc. et al

Filing 442

MOTION in Limine 3 (joint) by AOL, LLC., America Online, Inc., Google Inc., Yahoo!, Inc.. (Attachments: # 1 Text of Proposed Order)(Candido, Amy)

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Polaris IP, LLC v. Google Inc. et al Doc. 442 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION BRIGHT RESPONSE, LLC F/K/A POLARIS IP, LLC v. GOOGLE INC., et al. NO. 2:07CV-371-TJW-CE DEFENDANTS' JOINT MOTION IN LIMINE NO. 3: MOTION TO EXCLUDE LEGALLY INCORRECT EVIDENCE AND ARGUMENT REGARDING THE INVENTORS AND DEPLOYMENT OF THE EZ READER SYSTEM Dockets.Justia.com Introduction In this patent infringement case against Google, AOL, and Yahoo!, Defendants have reason to believe that Plaintiff may offer arguments that contradict established patent law concerning prior art. Specifically, Plaintiff may argue or imply that, because most of the inventors of the patent-in-suit were also involved in the development of the EZ Reader system, that system cannot invalidate the patent-in-suit. Plaintiff may also suggest that the EZ Reader system should not invalidate the patent-in-suit because the EZ Reader system was in public use for only a few months over one year before the patent-in-suit was filed. Such arguments not only contradict established law, but would be unfairly prejudicial, confuse the issues and mislead the jury. Thus, the Court should preclude such arguments pursuant to Federal Rules of Evidence 401, 402 and 403. Argument Defendants contend that the EZ Reader system, developed in part by named inventors Amy Rice, Julie Hsu, Anthony Angotti, and Rosanna Piccolo, invalidates the patent-in-suit because it was in public use more than one year before the claimed priority date of April 3, 1997. Specifically, Defendants contend that the EZ Reader system was used publicly in the first quarter of 1996--shortly before the critical date. Initially, it may strike a juror as unfair that a patent could be invalidated by the public use of a system developed by some of the named inventors and described in the patent. Plaintiff may seek to take advantage of this predisposition by arguing that, because four of the five inventors of the patent-in-suit were also involved in the development of the EZ Reader system, that system cannot invalidate the patent-in-suit. The law, however, permits no such exception to the public use requirement. See 35 U.S.C. 102(b). Therefore, the Court should preclude Plaintiff from 2 arguing or implying that because the named inventors of the `947 patent also helped develop the EZ Reader system, the EZ Reader system cannot invalidate the `947 patent. It may also initially strike a juror as unfair that a patent could be invalidated by a public use that occurred only a few days, weeks, or months prior to the critical date. Therefore, Plaintiff may argue or imply that the EZ Reader does not invalidate the patent because it was in public use for only a short time before the `947 patent's critical date. Once again, the law does not provide for any such exception. A patent is invalid if "the invention was . . . in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States." 35 U.S.C. 102(b). The patent statute is explicit in its one-year timeframe, and there is great danger of the jury being confused if Plaintiff is allowed to insinuate that exceeding this limit by mere days, weeks, or months is a technicality that the jury should overlook. Conclusion For the foregoing reasons, Plaintiff should be precluded from arguing or implying either (1) that because inventors of the patent-in-suit were also involved in the development of the EZ Reader system, that system cannot invalidate the patent-in-suit, or (2) that the patent-in-suit is not invalid because the EZ Reader system it was in public use only a few days, weeks, or months before the patent-in-suit was filed. DATED: July 22, 2010 Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN, LLP /s/ Amy H. Candido Charles K. Verhoeven, CA Bar No. 170151 LEAD ATTORNEY David A. Perlson, CA Bar No. 209502 Amy H. Candido, CA Bar No. 237829 QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: (415) 875-6600 Facsimile: (415) 875-6700 3 Jennifer Parker Ainsworth TX Bar No. 00784720 Wilson, Robertson & Cornelius, P.C. P.O. Box 7339 Tyler, Texas 75711 Telephone: (903) 509-5000 Facsimile: (903) 509-5092 jainsworth@wilsonlawfirm.com Attorneys for Defendant Google Inc. and AOL LLC William C. Rooklidge Email: rookidgew@howrey.com Bar No. 6238352 Howrey, LLP 4 Park Plaza, Suite 1700 Irvine, CA 92614-2559 Telephone: (949) 721-6900 Jason C White Howrey LLP - Chicago 321 North Clark Street Suite 3400 Chicago , IL 60610 312-595-1239 312-595-2250 facsimile whitej@howrey.com Jennifer H. Doan Joshua R. Thane HALTOM & DOAN Crown Executive Center, Suite 100 6500 Summerhill Road Texarkana, TX 75503 Tel: (903) 255-1002 Fax: (903) 255-0800 jdoan@haltomdoan.com jthane@haltomdoan.com Attorneys for Defendant Yahoo! 4 CERTIFICATE OF SERVICE The undersigned hereby certifies that counsel of record who are deemed to have consented to electronic service are being served today with a copy of this document via the Court's ECF system per Local Rule CV-5(a)(3), as well as by electronic mail. Any other counsel of record will be served via electronic mail, facsimile transmission and/or first class mail on today's date. By /s/ Margaret P. Kammerud Margaret P. Kammerud 5

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