Polaris IP, LLC v. Google Inc. et al

Filing 531

SUR-REPLY to Reply to Response to Motion re 392 MOTION for Summary Judgment of Invalidity filed by Bright Response LLC. (Attachments: # 1 Affidavit of Andrew D. Weiss, # 2 Exhibit A, # 3 Exhibit B)(Weiss, Andrew)

Polaris IP, LLC v. Google Inc. et al

Doc. 531

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION BRIGHT RESPONSE, LLC, Plaintiff, v. GOOGLE INC., et al., Defendants. § § § § § § § § § Civil Action No. 2:07-cv-371-CE JURY TRIAL DEMANDED

BRIGHT RESPONSE, LLC'S SURREPLY IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OF INVALIDITY UNDER 35 U.S.C. § 102(b), (e), AND § 103(a) Plaintiff Bright Response, LLC ("Bright Response") respectfully files this short surreply to address some important mischaracterizations in Defendants' Reply regarding the Allen reference. First, Defendants assert that Dr. Rhyne agrees that Allen discloses a "non-interactive electronic message" and there is therefore no genuine issue of material fact. Defendants'

mischaracterize Dr. Rhyne's opinion. As disclosed in Dr. Rhyne's report, it is his opinion that "the Allen system is designed to operate interactively with a user." Weiss Decl. Ex. A at ¶ 54. Dr. Rhyne then contrasts the interactive question and answer nature of Allen with the noninteractive system taught by the asserted claims of the '947 patent. Id. When the disclosure of the Allen patent is considered as a whole, rather than out of context, Dr. Rhyne opines that "Allen fundamentally describes an interactive system that requires the user or customer service representative to interact with the system to identify the 'best' case." Id. at 56. Defendants mischaracterize Dr. Rhyne's opinion and take it out of context (as they do with the Allen patent) to assert that Dr. Rhyne admitted that the Allen patent discloses processing non-interactive electronic messages. Dr. Rhyne never admitted that the Allen system discloses processing noninteractive electronic messages.
2995-011 100727 Surreply MSJ Invalidity Prior Art.doc

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Dockets.Justia.com

Defendants' reliance on Hewlett-Packard Co. v. Mustek Sys., 340 F.3d 1314, 1326 (Fed. Cir. 2003) is also misplaced. The issue in Hewlett-Packard was that the prior art "sometimes, but not always, embodies a claimed method." Id. It is Dr. Rhyne's opinion, however, that the Allen patent describes a system that is designed to be interactive. Weiss Decl. Ex. A at ¶ 53-56. It is Dr. Rhyne's opinion, and Bright Response's argument, that the Allen patent never embodies the non-interactive electronic message element of the asserted claims, not that it only sometimes does. Furthermore, Defendants have failed to show by clear and convincing evidence that the Allen patent is enabling regarding the relevant alleged disclosure. Sanofi-Synthelabo v. Apotex, Inc., 550 F.3d 1075, 1082 (Fed. Cir. 2008). Second, Defendants' argument with respect to classifying the electronic message also must fail because it does not take into account the actual claim language that clearly requires a source (e.g., the "user") and a different human operator. Allen does not disclose assistance from a human operator. Defendants take the new position that Allen at 10:17-23 and 10:32-39 disclose this limitation of Step 28(b1) of the '947 patent. These paragraphs of Allen, however, simply describe the user (i.e., the "source") entering new case data. Indeed, it is unclear that these paragraphs disclose classifying the non-interactive electronic message at all. Defendants also fundamentally mischaracterize Bright Response's position and Dr. Rhyne's opinion. Step 28(b1) can be infringed when, in a particular instance, either subpart (i) or subpart (ii), or both, is met. The Allen patent does not disclose at least Step 28(b1). As discussed above, Allen

describes an interactive system, and does not classify a non-interactive electronic message. Also, Mr. Allen, the first named inventor and Defendants' own consultant, clearly and equivocally testified that his patent did not "describe classifying a message for human review." Weiss Decl. Ex. B at 88:19-25. Third, as shown in the Response, the match table is not optional, and Defendants have no evidence that all cases would be scored if there were no match table. In fact, Mr. Allen testified that the embodiment of his invention that did not have a match table would still only score "those which have attribute value hits," which may be "a subset of the total number of exemplar cases in 2

the case base." Weiss Decl. Ex. B at 92:14-19. Further, even if the User's Guide for CBR Express 2.0 could be combined with Allen in an obviousness combination, the cited portion of the reference mentions nothing about scoring as required by Step 30(b6).

Dated: July 27, 2010

Respectfully submitted, By: /s/ Andrew D. Weiss Marc A. Fenster, CA SB # 181067 E-mail: [e-mail] Alexander C.D. Giza, CA SB # 212327 Email: [e-mail] Stanley H. Thompson, Jr., CA SB #198825 Email: [e-mail] Adam S. Hoffman, CA SB # 218740 Email: [e-mail] Andrew Weiss, CA SB # 232974 Email: [e-mail] RUSS, AUGUST & KABAT 12424 Wilshire Boulevard, 12th Floor Los Angeles, California 90025 Telephone: [phone] Facsimile: 310/826-6991 Andrew W. Spangler, TX SB # 24041960 Email: [e-mail] SPANGLER LAW P.C. 208 N. Green Street, Suite 300 Longview, Texas 75601 Telephone: [phone] Facsimile: 903/553-0403 David M. Pridham, R.I. SB # 6625 Email: [e-mail] LAW OFFICE OF DAVID PRIDHAM 25 Linden Road Barrington, Rhode Island 02806 Telephone: [phone] Facsimile: 401/633-7247 Patrick R. Anderson, MI SB #P68961 Email: [e-mail] PATRICK R. ANDERSON PLLC 4225 Miller Rd., Bldg. B-9, Suite 358 3

Flint, Michigan 48507 Telephone: [phone] Facsimile: 248/928-9239 Alan Brooks, TX SB # 24064952 Email: [e-mail] ALAN BROOKS LAW FIRM, PLLC 1317 California Pkwy, South Fort Worth, Texas 76134 Telephone: [phone]
Elizabeth A. Wiley, TX SB # 00788666 Email: [e-mail] THE WILEY LAW FIRM P.O. Box. 303280 Austin, Texas 78703-3280 Telephone: [phone] Facsimile: 512/551-0028

John C. Hueston, CA SB # 164921 Email: [e-mail] IRELL & MANELLA, LLP 840 Newport Center Drive, Suite 400 Newport Beach, California 92660 Telepone: 949/760-0991 Facsimile: 949/760-5200 Adam S. Goldberg, CA SB # 250172 Email: [e-mail] IRELL & MANELLA, LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067 Telephone: [phone] Facsimile: 310/203-7199 Attorneys for Plaintiff BRIGHT RESPONSE, LLC

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CERTIFICATE OF SERVICE I hereby certify that the counsel of record who are deemed to have consented to electronic service are being served on July 27, 2010 with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record will be served by electronic mail, facsimile transmission and/or first class mail on this same date. Dated: July 27, 2010 /s/ Andrew D. Weiss Andrew D. Weiss

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