PA Advisors, LLC v. Google Inc. et al

Filing 363

REPLY to Response to Motion re #350 SEALED MOTION FOR LEAVE filed by PA Advisors, LLC. (Attachments: #1 Affidavit, #2 Exhibit A)(Wiley, Elizabeth) Modified on 1/22/2010 to correct Errata to Exhibit (ehs, ).

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION PA ADVISORS, LLC, Plaintiff, v. GOOGLE INC., et al., Defendants. § § § § § § § § §

Civil Action No. 2:07-cv-480-RRR JURY TRIAL DEMANDED

NXN TECH, LLC'S REPLY TO RESPONSE OF YAHOO! INC. TO NXN TECH, LLC'S MOTION FOR LEAVE REGARDING SERVING AMENDED CONTENTIONS AS TO GOOGLE INC. Plaintiff nXn Tech, LLC (f/k/a PA Advisors, LLC) ("nXn") respectfully files this reply regarding the response in opposition of Yahoo! Inc. filed on January 20, 2009 with regard to nXn's Motion for Leave to serve amended contentions as to Yahoo's co-defendant Google Inc. ("Google"). I. LIMITED PURPOSE OF REPLY The limited purpose of nXn's Motion for Leave (Dkt. Nos. 350-352) is to address the procedural issue raised in connection with Google's Motion to Strike nXn's amended infringement contentions as to Google, filed on December 11, 2009 (Dkt. No. 325). There is no such issue pending before this Court with regard to Yahoo, as Yahoo suggests by including in its response (Dkt. No. 359) an objection to any request for leave by nXn to serve amended contentions as to Yahoo. This issue of nXn's seeking leave--with regard to the Google motion to strike only--was discussed in Court, at the January 7, 2010 hearing, with counsel for Yahoo present and therefore aware of the limited nature and purpose of that filing. Yahoo suggests in its response that nXn misrepresented statements in the Motion for Leave, yet any statements made as to procedural and factual background, a significant aspect of

nXn's motion for leave, is made based on the record presented in support of that motion by way of the attached exhibits and reference to the Court's docket sheet.1 The motion does include reference to Yahoo, only to demonstrate that the leave issue did not arise with Yahoo--in terms of a motion for leave being filed for amended infringement contentions--just as it did not with regard to Google (at least before Google filed its motion to strike on December 10, 2009), in which case there likewise was no issue or concern raised concerning the need to seek the Court's leave. Indeed, Yahoo and nXn had already agreed to modify the docket control order once--to allow nXn 30 additional days to serve final infringement contentions--extending the deadline to do so from October 30, 2009 (the same deadline to serve final infringement contentions as to Google) to November 30, 2009. See Dkt. No. 292 (Plaintiff's Unopposed Motion for Extension of Time); Dkt. No. 293 (Order granting). As that new November 30 deadline approached, however, nXn requested from Yahoo two additional weeks in which to prepare and serve final contentions, which Yahoo agreed to allow given the fact that nXn informed Yahoo that it was not adding any new claims:

1

Yahoo states that nXn's counsel (Ms. Wiley) declined to send Yahoo a copy of the filing. Yet the only communication on this issue is the email that Yahoo attaches to its opposition, which reflects Ms. Wiley's understanding of the propriety of that course of action, and no further communication occurred with any nXn counsel to reflect Yahoo's intimation in its response that Ms. Wiley was incorrect in her position. Indeed, the email reflects Ms. Wiley's understanding that in a matter concerning each of these defendant's source code issues, service is on that party only to ensure no potential compromise of the source code information. The certificate of service on the motion for leave reflects this understanding (Dkt. No. 350 at 17), as well as the Certificate of Authority to file under Seal (id.). The latter specifically states that in light of prior related filings made under seal, and the correspondence on source code production issues (with regard to Google only), that filing under seal and serving Google only (because of the Googlespecific issues, just as all discovery motions were filed and served) was a course of action taken out of an abundance of caution. See id. The ramifications of inadvertently revealing publicly, and to a competitor, information relating to source code are far greater than "over-sealing."

2

nXn has agreed not to assert any new claims in its final infringement contentions, we will agree to the additional two weeks. Please let me know if there is anything else ... you need from us on this issue. Ex. A (attached to Declaration of E. Wiley) (emphasis added). That timeline ultimately had to become longer by one week--an extension Yahoo expressly agreed to ­ as those final contentions were ultimately served on December 21, 2009, which at that time constituted the official end of the discovery period. 2 As the parties agreed, that timeline also was agreeable, so long as it was related to the September 30 Claim Construction order. See Wiley Decl. ¶ 2. nXn's supplementation as to Yahoo related to the Court's Claim Construction order and thus fully comport with the local Patent Rules and the agreed deadlines. II. OBJECTION nXn objects to the Court's considering an objection from Yahoo filed in this manner given that no issue is pending before the Court regarding a motion to strike nXn's amended final contentions as to Yahoo. III. CONCLUSION For the above-stated reasons, nXn requests that the Court disregard the manner in which Yahoo has raised an objection concerning nXn's final infringement contentions as to Yahoo served on December 21, 2009.

The Court thereafter ordered, at the December 28, 2009 hearing and the January 7, 2010 hearing, a limited extension of that discovery period to allow additional time for source code production.

2

3

Dated: January 22, 2010 Andrew W. Spangler LEAD COUNSEL SPANGLER LAW P.C. 208 N. Green Street, Suite 300 Longview, Texas 75601 [phone] [phone] (fax) [e-mail] David M. Pridham LAW OFFICE OF DAVID PRIDHAM 25 Linden Road Barrington, Rhode Island 02806 [phone] [phone] (fax) [e-mail] John M. Bustamante Texas Bar No. 24040618 BUSTAMANTE, P.C. 54 Rainey Street, No. 721 Austin, Texas 78701 Tel. [phone] Fax. [phone] Email:[e-mail] Kip Glasscock Texas State Bar No. 08011000 KIP GLASSCOCK P.C. 550 Fannin, Suite 1350 Beaumont, TX 77701 Tel: [phone] Fax: [phone] Email: [e-mail]

Respectfully submitted, By: /s/ Elizabeth A. Wiley Marc A. Fenster, CA Bar No. 181067 CA Bar No. 181067 [e-mail] Andrew Weiss CA Bar No. 232974 [e-mail] Adam Hoffman CA Bar No. 218740 [e-mail] RUSS, AUGUST & KABAT 12424 Wilshire Blvd., 12th Floor Los Angeles, CA 90025 [phone] [phone] (fax) Patrick R. Anderson PATRICK R. ANDERSON PLLC 4225 Miller Rd, Bldg. B-9, Suite 358 Flint, MI 48507 [phone] [phone] (fax) [e-mail] Debera W. Hepburn, Texas Bar No. 24049568 HEPBURN LAW FIRM PLLC P.O. Box 118218 Carrollton, TX 75011 Telephone: [phone] Facsimile: 888/205-8791 Email: [e-mail] Elizabeth A. Wiley Texas State Bar No. 00788666 THE WILEY FIRM PC P.O. Box. 303280 Austin, Texas 78703-3280 Telephone: [phone] Facsimile: [phone] Email: [e-mail]

4

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. \s\ Patrick R. Anderson January 22, 2010

5