Northeastern University et al v. Google, Inc.,

Filing 55

SUR-REPLY to Reply to Response to Motion re 47 MOTION to Compel 30(b)(6) DEPOSITION TESTIMONY FROM JARG CORPORATION AND NORTHEASTERN UNIVERSITY MOTION to Compel 30(b)(6) DEPOSITION TESTIMONY FROM JARG CORPORATION AND NORTHEASTERN UNIVERSITY MOTION to Compel 30(b)(6) DEPOSITION TESTIMONY FROM JARG CORPORATION AND NORTHEASTERN UNIVERSITY MOTION to Compel 30(b)(6) DEPOSITION TESTIMONY FROM JARG CORPORATION AND NORTHEASTERN UNIVERSITY filed by Northeastern University, Jarg Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Weaver, David)

Exhibit B

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION MYMAIL, LTD., Plaintiff, v. AMERICA ONLINE, INC., et al. Defendants. ) ) ) ) ) ) ) ) ) )

Case No. 6:04-CV-189 Judge Leonard E. Davis Jury Trial Demanded

DEFENDANT AMERICA ONLINE, INC.'S CLAIM CONSTRUCTION BRIEF

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" [c]ustomer terminals could access on the host computer content aggregated from the Internet, but the terminals were not directly connected to the Internet" ). One of the named inventors also admitted that such a system is not contemplated by the claims. See MyMail 30(b)(6) Depo. of Thomas Selgas (11/03/04), at 412:14-19, 415:10-14, Exh. 11. Furthermore, MyMail has repeatedly admitted that a significant aspect of an NSP is its ability to grant the user access to the Internet directly from a modem bank at a local POP.7 See, e.g., MyMail 30(b)(6) Depo. of Thomas Selgas (9/16/04) at 100-103 (stating that the user gets on the network " [a]t the location of the NSP" ), Exh. 9; id. at 125 (stating that EarthLink qualify as an NSP " if [it] owns it own modem banks" ); MyMail 30(b)(6) Depo. of Thomas Selgas (10/27/04) at 305, 333-35, Exh. 10. Accordingly, an NSP is a provider of network services that grants its customers Internet access directly from a modem bank at a local POP. MyMail further claims that this construction is too narrow because the patent discloses that " the invention supports many types of physical connections such as telephone connections, ISDN connections, Ethernet, and other local area connections." MM Br. at 14 (quoting col. 5:35-38). In highlighting this isolated sentence, MyMail ignores the rest of the patent' s disclosure, including the requirements imposed by the claims themselves, which require the NSP to include modems. A critical function of an NSP is to provide a user a connection via a telephone number. For example, claim 6 recites providing a user a " telephone number to access the access service provider via an available NSP," providing the user " information indicating a second telephone number for a given NSP," and providing the user a " connection to the network via the second

These admissions contradict MyMail' s argument that an NSP does not have to provide Internet access. MM Br. at 9 n.5. Each of the claims recite that user communicates with an ASP, which is an Internet entity. See supra. For users to communicate with the ASP via the NSP, the NSP must grant the users access to the Internet.

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CONCLUSION For the foregoing reasons, AOL urges the Court to adopt the Defendants' claim constructions, set forth in the Joint Claim Construction Statement. Dated: March 16, 2005 Respectfully submitted, _____ /s/ Lauren Degnan_________ Ruffin B. Cordell-- Attorney-in-charge (Texas State Bar No. 04820550) E-mail: [e-mail] Lauren A. Degnan E-mail: [e-mail] Rama G. Elluru E-mail: [e-mail] FISH & RICHARDSON P.C. 1425 K Street, N.W., 11th Floor Washington, D.C. 20005 Telephone: [phone] Facsimile: [phone] Michael E. Jones (Texas State Bar No. 10929400) POTTER MINTON, P.C. 110 N. College 500 Plaza Tower Tyler, Texas 75702 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Otis W. Carroll (Texas State Bar No. 03895700) Wesley Hill (Texas State Bar No. 24032294) IRELAND, CARROLL & KELLEY, P.C. 6101 S. Broadway, Suite 500 P.O. Box 7879 Tyler, TX. 75711 Telephone: [phone] Facsimile: [phone] E-mail: [e-mail] Attorneys for Defendant AMERICA ONLINE, INC. 39

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CERTIFICATE OF SERVICE A true and correct copy of the foregoing document was served on counsel of record for all Parties via the Court' s ECF system on this 16th day of March, 2005:

____________ __________/s/ Sarah Tyson

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