Polaris IP, LLC v. Google Inc. et al

Filing 67

SUR-REPLY to Reply to Response to Motion re 43 MOTION for More Definite Statement MOTION to Stay MOTION to Strike, 40 MOTION to Dismiss the complaint by AOL filed by Polaris IP, LLC. (Edmonds, John)

Polaris IP, LLC v. Google Inc. et al

Doc. 67

Case 2:07-cv-00371-TJW-CE

Document 67

Filed 11/23/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION POLARIS IP, LLC v. GOOGLE, INC., et al. No. 2:07-cv-00371-TJW-CE JURY

PLAINTIFF'S SUR-REPLY REGARDING AOL'S MOTION TO DISMISS, MOTION FOR MORE DEFINITE STATEMENT, MOTION TO STRIKE AND MOTION TO STAY DISCOVERY Plaintiff, Polaris IP, LLC ("Polaris IP"), files this Sur-Reply to the Reply (Dkt. No. 60) of Defendants America Online, Inc. and AOL LLC (collectively "AOL") regarding AOL's Motion to Dismiss, or in the Alternative, for a More Definite Statement, Motion to Strike and Motion to Stay Discovery (Dkt. No. 43), as follows: I. AOL's Reply "incorporates by reference" Google's Reply (Dkt. No. 59) regarding the same issues. Accordingly, Polaris IP hereby incorporates its Sur-Reply to Google's Reply, which is being filed concurrently herewith. II. In addition, AOL's Reply states that Polaris IP's Response merely incorporated its Response to Google's Motion, and thus "leaves unanswered the arguments presented on page 2 of AOL's Motion." The reason that Polaris IP incorporated its Response to Google's Motion is that AOL's Motion appeared to merely incorporate Google's, and it merely requested relief "for the reasons set forth" in Google's Motion. As stated in Polaris IP's Response, AOL's Motion provides no independent analysis and relies solely upon the grounds set forth in Google's Motion. Accordingly, rather than burden the court with repetitiveness, Polaris IP incorporates herein its Response to Google's Motion. 1

Dockets.Justia.com

Case 2:07-cv-00371-TJW-CE

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Filed 11/23/2007

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Irrespective of the foregoing, although it is not clear that AOL is making any argument in addition to those of Google, Polaris IP will now address what AOL complains is unanswered. AOL argues that it "does not offer any services relating to automated email messaging systems in the customer relationship management field -- the subject matter of the '947 patent." This is similar, if not identical, to Google's erroneous arguments that Polaris IP has refuted. Simply put, the `947 patent is not limited to automated email messaging systems or the customer relationship management field. Rather, multiple claims of the patent cover the processing of noninteractive messages, such as those utilized by www.aol.com, using rule base and case base knowledge engines. For example, claim 26 covers the following: 26. (a) (b) (c) A method for automatically processing a non-interactive electronic message using a computer, comprising the steps of: receiving the electronic message from a source; interpreting the electronic message using a rule base and case base knowledge engine; and retrieving one or more predetermined responses corresponding to the interpretation of the electronic message from a repository for automatic delivery to the source.

AOL's Reply alleges that AOL has "hundreds of product offerings." Polaris IP is not aware of AOL's "hundreds of product offerings," nor has Polaris IP accused "hundreds" of AOL products of infringement. Rather, Polaris IP has accused functionality present at www.aol.com of infringement, specifically relative to its use of rule base and case base knowledge engines. Polaris IP need not accuse any "product" more specific than www.aol.com of infringement because Polaris IP is not aware of any infringing AOL product other than functionality present at www.aol.com. AOL complains that Polaris IP has merely accused AOL's "web address" of 2

Case 2:07-cv-00371-TJW-CE

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infringement, but the functionality of www.aol.com is what infringes. Polaris IP should not be blamed, nor its Complaint deemed insufficient, merely because Polaris IP has named the accused instrumentality as it is named. Accordingly, for at least the reasons noted above, and in Polaris IP's Response and Reply relative to Google, AOL has presented no grounds for relief and its Motion should be denied. Polaris IP also requests such other relief to which it may be entitled. Date: November 23, 2007. Respectfully submitted, POLARIS IP, LLC By: /s/ John J. Edmonds Eric M. Albritton - LEAD ATTORNEY Texas Bar No. 00790215 ALBRITTON LAW FIRM P.O. Box 2649 Longview, Texas 75606 Telephone: [phone] Facsimile: [phone] [e-mail] Danny L. Williams Texas State Bar No. 21518050 J. Mike Amerson Texas State Bar No. 01150025 Williams, Morgan & Amerson, P.C. 10333 Richmond, Suite 1100 Houston, Texas 77042 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] David M. Pridham R.I. Bar No. 6625
Intellectual Property Navigation Group, LLC

207 C North Washington Avenue Marshall, Texas 75670 Telephone: [phone] Facsimile: [phone] [e-mail] 3

Case 2:07-cv-00371-TJW-CE

Document 67

Filed 11/23/2007

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John J. Edmonds Texas Bar No. 00789758 THE EDMONDS LAW FIRM, PC 709 Sabine Street Houston, Texas 77007 Telephone: [phone] Facsimile: [phone] (Fax) [e-mail] Jason W. Cook Texas Bar No. 24028537 The Law Office of Jason W. Cook 6282 McCommas Blvd. Dallas, Texas 75214 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Plaintiff POLARIS IP, LLC CERTIFICATE OF SERVICE I hereby certify that the 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 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: November 23, 2007 /s/ John J. Edmonds John J. Edmonds

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