PA Advisors, LLC v. Google Inc. et al

Filing 471

MOTION for Leave to File Supplemental Brief in Support of Its Motions for Summary Judgment of Non-Infringement by Yahoo! Inc.. (Attachments: #1 Text of Proposed Order)(Doan, Jennifer)

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PA Advisors, LLC v. Google Inc. et al Doc. 471 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION PA ADVISORS, LLC, Plaintiff, v. GOOGLE INC., et al. Defendants. Civil Action No. 2-07-CV-480-RRR YAHOO! INC.'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTIONS FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT Yahoo!, Inc. ("Yahoo!") seeks leave to file a supplemental brief presenting additional evidence in support of its Motions for Summary Judgment of Non-Infringement, Dkt. Nos. 356 and 390. Good cause exists to supplement the record as essential information regarding Plaintiff's infringement expert was not available to Yahoo! prior to the deadline for filing Yahoo!'s Motions for Summary Judgment of Non-Infringement. I. BACKGROUND Plaintiff served Dr. V. Thomas Rhyne's ("Dr. Rhyne") initial expert report regarding infringement on Yahoo! on January 4, 2010. Yahoo! filed its Motion for Summary Judgment of Non-Infringement on January 15, 2010 [Dkt. No 356]. Dr. Rhyne's supplemental expert report was served on Yahoo! on January 22, 2010. Yahoo! filed its Reply to its Motion for Summary Judgment of Non-Infringement [Dkt. No. 385] and its Second Motion for Summary Judgment of Non-Infringement on January 29, 2010 [Dkt. No. 390]. Yahoo! filed its Reply to its Second Motion for Summary Judgment of Non-Infringement on February 16, 2010 [Dkt. No. 408]. Dr. Rhyne's deposition occurred on February 18-19, 2010, well after Yahoo!'s briefing period for both motions for summary judgment had expired. YAHOO'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF - Page 1 Dockets.Justia.com II. ARGUMENT Yahoo! filed its motions for summary judgment of non-infringement without the opportunity to cross-examine Dr. Rhyne on his opinions of infringement. As such, Yahoo! was unable to flesh out Dr. Rhyne's infringement analysis. Good cause exists to allow Yahoo! to file a supplemental brief as it was impossible for Yahoo! to include vital information gained through Dr. Rhyne's deposition in either of its motions for summary judgment of non-infringement or its replies thereto. As a direct consequence, Yahoo! was unable to provide this information to the Court. If granted permission to file a supplemental brief, Yahoo! seeks to bring to the Court's attention admissions made by Dr. Rhyne during his deposition on February 18, 2010. As the supplemental brief will support, Dr. Rhyne's admissions confirm that summary judgment should be granted on all asserted claims 1, 3, 4, 6, 43, 45, 47 and 61 of United States Patent No. 6,199,067 ("`067 patent"). Yahoo! is not seeking to add new arguments, only to supplement the record with previously unavailable information that further supports Yahoo!'s previously-filed motions for summary judgment of non-infringement. For the above reasons, Yahoo! respectfully requests the Court to grant it leave to file a supplemental brief in support of its motions for summary judgment of non-infringement. YAHOO'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF - Page 2 Respectfully submitted, /s/ Jennifer H. Doan Jennifer Doan John Scott Andrews HALTOM & DOAN Crown Executive Center, Suite 100 6500 Summerhill Road Texarkana, TX 75503 Tel: (903) 255-1002 Fax: (903) 255-0800 jdoan@haltomdoan.com sandrews@haltomdoan.com Jason C. White HOWREY LLP 321 N. Clark Street, Suite 3400 Chicago, IL 60654 Tel: (312) 595-1239 Fax: (312) 595-2250 whitej@howrey.com Attorneys for Defendant Yahoo! Inc 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 this the 26th day of February, 2010. /s/ Jennifer H. Doan Jennifer H. Doan CERTIFICATE OF CONFERENCE Yahoo!'s counsel has conferred with plaintiff's counsel on the relief requested in this motion and could not come to complete agreement. As such, this motion is being filed as opposed. /s/ Jennifer H. Doan Jennifer H. Doan YAHOO'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF - Page 3

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