PA Advisors, LLC v. Google Inc. et al

Filing 460

RESPONSE in Opposition re #420 MOTION in Limine (Defendant Yahoo! Inc.'s Motions in Limine) MOTION in Limine (Defendant Yahoo! Inc.'s Motions in Limine) filed by PA Advisors, LLC. (Attachments: #1 Affidavit, #2 Exhibit A-1, #3 Exhibit A-2, #4 Exhibit A-3)(Anderson, Patrick)

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PA Advisors, LLC v. Google Inc. et al Doc. 460 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 RESPONSE TO YAHOO! INC.'S MOTION IN LIMINE NO. FOUR Yahoo's Motion in Limine No. 4, in which it attempts to prevent nXn from offering any evidence or testimony that Yahoo had constructive notice of the patent in suit (the "Motion") is without merit and should be denied. In its Motion Yahoo asserts that nXn should be precluded from offering evidence regarding constructive notice because nXn is "unable to marshal any evidence showing that it marked its own products, or that any marking were `substantially consistent and continuous.'" Motion at 7 (quoting Amsted Indus. Inc. v. Buckeye Steel Castings Co., 24 F.3d 178, 187 (Fed. Cir. 1994)). However, Yahoo is simply mistaken. The evidence is clear that `067 Patent's prior owners did consistently mark tangible items associated with the claimed inventions. First, Ilya Geller's company, Mightiest Logicon Unisearch, maintained a company website at See Declaration of Patrick Anderson, Ex. A (excerpts of archive produced at PA0001419-1513) (hereafter "Anderson Decl., Ex. _"). These early webpages were archived prior to the issuance of the `067 Patent and were produced early in this litigation to Yahoo. For example, in an executive summary of the Unisearch technology, notice is provided that "[t]he Company has applied for patent protection in the US and under the Patent Cooperation Treaty ..." Anderson Decl, Ex. A at PA0001488. Mr. Geller has previously testified that these pages came from his original Unisearch website. Anderson Decl., Ex. B (Geller August 2009 Deposition) at 152:8-153:18. Second, Geller's company later maintained a website at, which described the patented technology in detail. Anderson Decl., Ex. C (Excerpt of at GELLER033540 (describing the `067 Patent). Mr. Geller previously testified that this description was publically available as displayed on his website. Anderson Decl., Ex. D (Geller December 2009 Deposition) at 314:11-21. Courts have previously noted that a website is an object that can be marked. See Anderson Decl., Ex. E, IMX, Inc. v. Lendingtree, LLC, Civ. No. 03-1067-SLR, 2005 U.S. Dist. LEXIS 33179 at *12 (D. Del. December 14, 2005) ("[A]s interpreted by the Federal Circuit, the website is intrinsic to the patented system and constitutes a `tangible item to mark by which notice of the asserted method claims can be given.'"). See also Soverain Software LLC v, Inc., 383 F. Supp. 2d 904, 909 (E.D. Tex 2005) ("Here, however, Amazon has produced evidence that a website can be marked by submitting screen shots of websites that include patent notices.") For these reasons, Yahoo's Motion should be denied. Dated: February 24, 2010 Andrew W. Spangler LEAD COUNSEL SPANGLER LAW P.C. 208 N. Green Street, Suite 300 Longview, Texas 75601 (903) 753-9300 (903) 553-0403 (fax) Respectfully submitted, By: /s/ Patrick R. Anderson_ Patrick R. Anderson Marc A. Fenster, CA Bar No. 181067 CA Bar No. 181067 Andrew Weiss CA Bar No. 232974 2 David M. Pridham LAW OFFICE OF DAVID PRIDHAM 25 Linden Road Barrington, Rhode Island 02806 (401) 633-7247 (401) 633-7247 (fax) John M. Bustamante Texas Bar No. 24040618 BUSTAMANTE, P.C. 54 Rainey Street, No. 721 Austin, Texas 78701 Tel. 512.940.3753 Fax. 512.551.3773 Kip Glasscock Texas State Bar No. 08011000 KIP GLASSCOCK P.C. 550 Fannin, Suite 1350 Beaumont, TX 77701 Tel: (409) 833-8822 Fax: (409) 838-4666 Email: Adam Hoffman CA Bar No. 218740 RUSS, AUGUST & KABAT 12424 Wilshire Blvd., 12th Floor Los Angeles, CA 90025 (310) 826-7474 (310) 826-6991 (fax) Patrick R. Anderson PATRICK R. ANDERSON PLLC 4225 Miller Rd, Bldg. B-9, Suite 358 Flint, MI 48507 (810) 275-0751 (248) 928-9239 (fax) Debera W. Hepburn, Texas Bar No. 24049568 HEPBURN LAW FIRM PLLC P.O. Box 118218 Carrollton, TX 75011 Telephone: 214/403-4882 Facsimile: 888/205-8791 Email: Elizabeth A. Wiley Texas State Bar No. 00788666 THE WILEY FIRM PC P.O. Box. 303280 Austin, Texas 78703-3280 Telephone: (512) 420.2387 Facsimile: (512) 551.0028 Email: CERTIFICATE OF SERVICE The undersigned hereby certifies that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3). \s\ Patrick R. Anderson Patrick R. Anderson 3

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