PA Advisors, LLC v. Google Inc. et al

Filing 266

DEFENDANTS' SUR-REPLY BRIEF to #248 Claim Construction Brief filed by Google Inc.. (Cannon, Brian)

PA Advisors, LLC v. Google Inc. et al

Doc. 266

UNTIED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION PA ADVISORS, LLC, Plaintiff, Honorable David Folsom, Presiding CASE NO. 2-07-CV-480-DF

GOOGLE INC., ET AL., Defendants.

DEFENDANTS' SUR-REPLY BRIEF ON CLAIM CONSTRUCTION

Defendants Google Inc. ("Google") and Yahoo! Inc. ("Yahoo") respectfully submit this sur-reply in response to Plaintiff's August 24, 2009 Reply Brief Regarding Claim Construction. With respect to the terms "Linguistic Pattern," "User Profile," and "Data Item Profile," Plaintiff's Reply brief does not address the claim constructions that Defendants assert in their Responsive Brief, but instead argues against earlier claim constructions proposed by Defendants. This sur-reply clarifies for the Court the pertinent claim constructions proposed by Defendants. I. "LINGUISTIC PATTERN" Defendants' Construction Plaintiff's Construction

A repeating combination of various parts of speech (nouns, A combination of various parts verbs, adjectives, etc.) that reflect the author's cultural, of speech (nouns, verbs, educational, social backgrounds and the author's psychological adjectives, etc.). profile that occurs in texts composed by the author.

Defendants' provided their construction for this term on page 9 of their Responsive Claim Construction Brief prominently and clearly in a table on the page. As Defendants further indicated in footnote 5, Defendants' construction in its Response differed from the construction

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included in the parties' Joint Claim Construction Statement ("JCCS"). (D.N. 232 at 8.) Defendants restructured the construction and changed the word "user" to "author" to address an objection raised by Plaintiff's that Defendants' prior construction was inconsistent with the language of the claims regarding the "second linguistic pattern." (Opening Br. at 12.) Plaintiff's Reply, however, ignores Defendants' actual construction from Defendants' Response. Instead, in its lead argument as to this phrase, Plaintiff incorrectly quotes and argues against Defendants' prior JCCS construction. (Reply Br. at 2.) Plaintiff's lead argument, therefore, is moot. II. "USER PROFILE" AND "DATA ITEM PROFILE" Defendants' Construction for User Profile A file containing information representative of a specific user's linguistic patterns and the frequencies with which these patterns recur in texts that are: (i) submitted by the user or (ii) associated with the user and automatically acquired by the system, without identifying any background or private information about the user. Plaintiff's Construction A collection of information about a user.

Defendants' Construction for Data Item Profile

Plaintiff's Construction

A file containing a data item's address, the linguistic patterns of A collection of information the data item, and the frequencies with which those patterns about a data item. recur.

Defendants also set forth prominently and clearly in a table their constructions for these terms on pages 19 and 23 of their Response. Defendants further indicated in footnotes 9 and 11 that Defendants' constructions for these terms differed slightly from their JCCS constructions. (D.N. 232 at 20, 22.) For instance, for "user profile," Defendants changed the words "about a" to "representative of" specifically to address an objection raised by Plaintiff in its Opening Brief. (Opening Br. at 26.) Plaintiff, however, again ignores Defendants' actual constructions and 2

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incorrectly quotes and argues against Defendants' prior JCCS constructions. (Reply Br. at 6 and 7-8.) Conclusion Defendants respectfully request this Court adopt the claim constructions provided by Defendants.

DATED: September 2, 2009

By: /s/ Brian C. Cannon Charles K. Verhoeven, California Bar No. 170151 [e-mail] Quinn Emanuel Urquhart Oliver & Hedges, LLP 50 California Street, 22nd Floor San Francisco, CA 94111 Tel.: [phone] Fax: [phone] Brian C. Cannon California Bar No. 193071 [e-mail] Quinn Emanuel Urquhart Oliver & Hedges, LLP 555 Twin Dolphin Drive, Suite 560 Redwood Shores, CA 94065 Tel.: [phone] Fax: [phone]

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David J. Beck Texas Bar No. 00000070 [e-mail] Michael E. Richardson Texas Bar No. 24002838 [e-mail] BECK, REDDEN & SECREST, L.L.P. One Houston Center 1221 McKinney St., Suite 4500 Houston, Texas 77010 [phone] [phone] (Fax) ATTORNEYS FOR GOOGLE INC. Jason C. White Howrey LLP 321 North Clark Street, Suite 3400 Chicago, Illinois 60654 [phone] Michael E. Jones POTTER MINTON A Professional Corporation 110 N. College, Suite 500 (75702) P. O. Box 359 Tyler, Texas 75710 [phone] ATTORNEYS FOR YAHOO! INC.

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CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a). As such, this motion was served on all counsel who are deemed to have consented to electronic service on the 2 of September, 2009. Local Rule CV5(a)(3)(A).

/s/ Brian C. Cannon_________________ Brian C. Cannon

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