Polaris IP, LLC v. Google Inc. et al

Filing 534

RESPONSE in Opposition re 527 MOTION to Strike /Exclude Expert Testimony from Dr. L. Karl Branting Regarding Written Description Under Daubert and Rule 702 of the Federal Rules of Evidence filed by AOL, LLC., America Online, Inc., Google Inc., Yahoo!, Inc.. (Attachments: # 1 Declaration of Scott Sherwin, # 2 Exhibit 1)(Doan, Jennifer)

Polaris IP, LLC v. Google Inc. et al

Doc. 534

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION BRIGHT RESPONSE, LLC F/K/A POLARIS IP, LLC Plaintiff v. GOOGLE INC., et al. Defendants

Case No.: 2:07-cv-371-CE Oral Hearing Requested

DEFENDANTS' RESPONSE TO BRIGHT RESPONSE, LLC'S MOTION TO EXCLUDE EXPERT TESTIMONY FROM DR. L. KARL BRANTING Plaintiff's motion to strike or exclude expert testimony from Dr. Karl Branting should be denied because Dr. Branting's opinion regarding the inadequate written description in the '947 patent is fully supported. Defendants' explained the basis for Dr. Branting's opinion in response to Plaintiff's motion in limine no. 6. (Dkt. No. 508.) As shown in his expert report at ¶¶ 23-30, Dr. Branting explained the factual foundation for his opinions and the bases for his opinions regarding the lack of written description in the '947 patent. In particular, Dr. Branting explained his understanding of the '947 patent disclosure that: 23. The `947 patent describes a system designed for automatically processing emails. According to the specification, as businesses go "online" they need to process and respond to an increasing number of emails. Rather than hiring additional employees and/or requiring those employees to work longer hours, the specification details a system for automatically responding to some emails so as to lower the amount of email traffic that employees need to review. (`947 patent, 1:26-59.) (Sherwin Decl. Ex. 1) (Excerpt of Dr. Branting's Expert Report at ¶ 23.) Based on his review of the '947 patent disclosures, he opines that "one of ordinary skill in the art

01980.51452/3600888.1

DM_US:23375125_4

Dockets.Justia.com

would not understand that the specification described in sufficient detail an invention to receive, interpret, and retrieve one or more responses to an Internet search query or an Internet user's click or a web page." (Id. at ¶ 277.) Further, this Court has noted the importance of analyzing the relevant field of art. (Dkt. No. 481 at 2.) Dr. Branting complied with this requirement by examining many prior art references. (Sherwin Decl. Ex. 1) (Excerpt of Dr. Branting's Expert Report at ¶¶ 43-110.) Therefore, this section of his report is an additional basis to support Dr. Branting conclusion that the '947 patent fails to disclose that "one of ordinary skill in the art would not understand that the specification described in sufficient detail an invention to receive, interpret, and retrieve one or more responses to an Internet search query or an Internet user's click or a web page." (Id. at ¶ 277.) Finally, Plaintiff's main complaint seems to be that Dr. Branting's discussion is short. That is because this issue is simple and straightforward. If Plaintiff believes that Dr. Branting's conclusions are without merit based on the disclosures in his report, then Plaintiff is free to point that out on cross-examination. It is not a reason, however, to exclude his opinion. For all of these reasons, Plaintiff's motion to strike or exclude expert testimony from Dr. Karl Branting should be denied.

01980.51452/3600888.1

DM_US:23375125_4

Dated: July 27, 2010

Respectfully Submitted, /s/ Jennifer Doan Jennifer Doan Joshua Reed Thane HALTOM & DOAN Crown Executive Center, Suite 100 6500 Summerhill Rd. Texarkana, Texas 75503 Tel: [phone] Fax: [phone] Email: [e-mail] Email: [e-mail] William C. Rooklidge HOWREY, LLP 4 Park Plaza, Suite 1700 Irvine CA 92614-2559 Telephone: [phone] [e-mail] Jason C. White Mansi Shah Scott Sherwin HOWREY LLP 321 N. Clark, Suite 3400 Chicago, IL 60654 Tel: [phone] Fax: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Attorneys for Defendant Yahoo! Inc. /s/___David Perlson w/permission________ Charles K. Verhoeven, CA Bar No. 170151 LEAD ATTORNEY David A. Perlson, CA Bar No. 209502 Jennifer A. Kash, CA Bar No. 203679 Amy H. Candido, CA Bar No. 237829 Eugene Novikov, CA Bar No. 257849 QUINN EMANUEL URQUHART & SULLIVAN, LLP 50 California Street, 22nd Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone]

01980.51452/3600888.1

DM_US:23375125_4

Jennifer Parker Ainsworth TX Bar No. 00784720 Wilson, Robertson & Cornelius, P.C. P.O. Box 7339 Tyler, Texas 75711 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Defendant Google Inc. and AOL LLC CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). All other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by certified mail, return receipt requested, on July 27, 2010. /s/ Jennifer Doan Jennifer H. Doan

01980.51452/3600888.1

DM_US:23375125_4