IP Innovation LLC et al v. Google, Inc.

Filing 98

MOTION to Amend/Correct Defendant and Counterclaim-Plaintiff Google Inc.'s Unopposed Motion for Leave to Supplement Invalidity Contentions by Google, Inc.. (Attachments: # 1 Text of Proposed Order)(Beck, David)

IP Innovation LLC et al v. Google, Inc.

Doc. 98

UNITED STATES DISTRICT COURT
F'OR THE EASTERN DISTRICT OF TEXAS

MARSHALL DIVISION
rP TNNOVATTON L.L.C.

AND
CORPORATION,

$ $ $ $

TECHNOLOGY LICENSING

Plaintiffs, v.$
GOOGLE

$ $
$

CASE NO. 2:07CV-503-LED

INC., Defendant.

ruRY TRIAL REQUESTED

$ $

DEFENDANT AND COT]NTERCLAIM.PLAINTIF'F' GOOGLE INC.'S UNOPPOSED MOTION FOR LEAVE TO SUPPLEMENT INVALIDITY CONTENTIONS

Defendant and Counterclaim-Plaintiff Google Inc. ("Google") respectfully moves to
supplement its invalidity contentions pursuant to Local Patent Rule 3-6(b), and in support thereof
states as follows:

1. 2.

On August 25,2008, Google complied with P.R. 3-3 and served its invalidity

contentions, including all relevant art of which Google's counsel was aware. On November 9, 2009, a video

-

the Eames, Charles and Eames, Ray, "Powers

of

Ten," The Office of Charles and Ray Eames, 1977 (fhe "Powers of Ten Video")
attention of Google's counsel for the first time.

- came to the

3. 4.

On November

ll,

2009, Google produced two versions of the Powers of Ten

Video to Plaintiffs.

On November 24, 2009, Google requested that Plaintiffs assent to

the

supplementation of Google's invalidity contentions to include the Powers of Ten Video.

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Dockets.Justia.com

5.

On December 9,2009, the parties' served their respective opening expert reports.

One of the reports served by Google on that date is the Expert Report of Norman Badler, Ph.D. Regarding Invalidity of the Asserted Claims of U.S. Patent No. 5,276,785. Dr. Badler's report

includes the bases on which Google seeks to use the Powers

of Ten Video to

support its

invalidity contentions. Rebuttal reports are due on January 6,2010.

6. 7.

On December 16, 2009, Plaintiffs informed Google they do not oppose this

motion. The parties do not seek to change any due dates under the Court's Docket Control Order.
Despite Google's best efforts to identiff relevant prior art before serving its

invalidity contentions on August 25, 2008, Google learned of the Powers of Ten Video only
recently, and promptly produced

it to Plaintiffs and sought their assent to permit Google to

supplement its invalidity contentions. Google has not intentionally delayed in learning of this important prior art reference, or disclosing it to Plaintiffs.

8.

Google

will

serve its supplemental invalidity contentions by December 21,2009,

or as soon thereafter as the Court's ruling on Google's
supplement its invalidity contentions permits.

unopposed motion

for leave to

Google respectfully requests this Court grant its unopposed motion seeking leave to
supplement its invalidity contentions to add the Powers of Ten Video pursuant to Local Patent Rule 3-6.

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Dated: December 18, 2009

Respectfully submitted,

By: /s/ David

J Beck

David J. Beck Texas Bar No. 00000070 [e-mail] Michael E. Richardson Texas Bar No. 24002838 [e-mail] Becr, ReoopN & Secn¡sr, L.L.P. One Houston Center l22l McKinney St., Suite 4500 Houston, TX. 77010 (713) esr-3700 (7t3) 951-3720 (Fax)

Mark G. Matuschak (admittedpro hac vice) Wu,vren CurlenPrcreRruc Hele AND DoRR LLP
60 State Street Boston, MA 02109 (6t7) s26-6000 (6t7) 526-5000 (Fax)
John M. Hintz (admittedpro hac vice) Victor F. Souto (admittedpro hac vice) Ross E. Firsenbaum (admittedpro hac vice) Wrlvren Curr.BnPrcreruNcHelr AND DoRR LLP 399 Park Avenue New York, NY 10022

(2r2)230-8800 [phone] (Fax)
Elizabefh Rogers Braruren (admittedpro hac vice) Anna T. Lee (admittedpro hac vice) Wu.vreR Curr,eR PrcrezuNc Hele AND DoRR LLP lllT California Avenue Palo Alto, CA94304 (6s0) 8s8-6042 (6s0) 858-6100 (Fax) Attorneys for Defendant and Counter-Claim Plaintiff Google Inc.

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing document was filed electronically in compliance with Local Rule CV-S(a). As such, this motion was served on all counsel who have consented to electronic service. Local Rule CV-5(aX3XA).

/s/ Michael E. Richardson
Michael E. Richardson

CERTIF'ICATE OF' CONFERENCE
Counsel for Google Inc., Mark Matuschak,Elizabeth Rogers Brannen, and Brad Coffey, have conferred with Counsel for Plaintiffs IP Innovation L.L.C. and Technology Licensing Corporation, Doug Hall, Paul Gibbons, and Johnny Ward, regarding the foregoing motion and Plaintiffs are unopposed to same.

/s/ Michael E. Richardson
Michael E. Richardson

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