PA Advisors, LLC v. Google Inc. et al

Filing 475

RESPONSE in Opposition re #471 MOTION for Leave to File Supplemental Brief in Support of Its Motions for Summary Judgment of Non-Infringement filed by PA Advisors, LLC. (Anderson, Patrick)

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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 OPPOSITION TO YAHOO! INC.'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF IN SUPPORT OF ITS MOTIONS FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT nXn Tech, LLC (f/k/a PA Advisors, LLC) ("nXn") respectfully files this opposition to Yahoo! Inc. ("Yahoo")'s Motion for Leave to File Supplemental Brief In Support of Its Motions for Summary Judgment of Non-Infringement ("Motion for Leave"). nXn opposes Yahoo's attempt to introduce unauthorized arguments and evidence for non-infringement of Claim 1 one court day before Yahoo's non-infringement motions are to be heard. The Court's Order of October 1, 2009 (Docket No. 286), required Yahoo to submit a letter brief seeking permission to file any motion for summary judgment. On November 4, 2009, Yahoo filed such a letter brief seeking summary judgment on two bases. See Docket No. 297-2. First, Yahoo argued it was entitled to summary judgment on Claim 1 and dependent claims thereto because Yahoo allegedly does not perform step 1(c) of Claim 1, and allegedly does not "direct or control" the performance of this step, as, Yahoo argued, is required under Muniauction, Inc. v. Thomson Corp. Id. at 1-2. Second, Yahoo argued that it was entitled to summary judgment on Claim 45 and dependent claims thereto because Yahoo allegedly does not perform steps (a) through (k) of Claim 45. Id. at 2. Based on this representation, Judge Folsom granted Yahoo's request for permission to file a motion for summary judgment "on all issues proposed" in its letter brief, and not on any other issues. Order of Dec. 14, 2009 (Docket No. 330). Yahoo's First Motion for Summary Judgment followed the first basis of its letter brief, focusing on non-infringement of Claim 1 under the doctrine of divided infringement and the holding thereon in Muniauction. See Docket No. 356. However, Yahoo's Second Motion for Summary Judgment was not limited to the second basis of its letter brief, non-infringement of Claim 45. Instead, Yahoo also argued for non-infringement of steps (a) and (i) of Claim 1. See Docket No. 390 at 9-12. These arguments exceeded the "issues proposed" in Yahoo's letter brief, and were therefore not authorized by the Court's December 13, 2009 Order. These arguments should therefore not be considered by the Court. Moreover, Yahoo makes further arguments regarding non-infringement of steps (a) and (i) in its proposed supplemental brief (Docket No. 472 at 3-5), thus compounding its improper conduct. The Court should therefore deny Yahoo's motion for leave as to these portions of Yahoo's supplemental brief. 2 Dated: March 1, 2010 Andrew W. Spangler SPANGLER LAW P.C. 208 N. Green Street, Suite 300 Longview, Texas 75601 (903) 753-9300 (903) 553-0403 (fax) spangler@spanglerlawpc.com David M. Pridham LAW OFFICE OF DAVID PRIDHAM 25 Linden Road Barrington, Rhode Island 02806 (401) 633-7247 (401) 633-7247 (fax) david@pridhamiplaw.com 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 Email:jmb@BustamanteLegal.com 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: kipglasscock@hotmail.com Respectfully submitted, By: /s/ Patrick R. Anderson_ Patrick R. Anderson Marc A. Fenster, CA Bar No. 181067 CA Bar No. 181067 mfenster@raklaw.com Andrew Weiss CA Bar No. 232974 aweiss@raklaw.com Adam Hoffman CA Bar No. 218740 ahoffman@raklaw.com 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) patrick@prapllc.com 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: dhepburn@heplaw.com 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: lizwiley@wileyfirmpc.com 3 CERTIFICATE OF SERVICE I certify that the foregoing response of Plaintiff nXn was served on counsel of counsel pursuant to Rule 5(b) of the Federal Rules of Civil Procedure, by electronic mail, on this 1st day of March, 2010. \s\ Patrick R. Anderson Patrick R. Anderson 4

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