API Technologies, LLC v. Facebook, Inc. et al

Filing 183

RESPONSE to Motion re 174 MOTION to Change Venue Motion to Transfer Venue to the Northern District of California filed by API Technologies, LLC. (Attachments: # 1 Affidavit Wiley Declaration, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30, # 32 Exhibit 31, # 33 Exhibit 32, # 34 Exhibit 33, # 35 Exhibit 34, # 36 Affidavit Spangenberg Declaration, # 37 Affidavit Spangler Declaration, # 38 Affidavit Hepburn Declaration)(Wiley, Elizabeth)

WILEY DECLARATION EX. 7

EXHIBIT A I. DEFINITIONS 1. "PLAINTIFF," or "BRIGHT RESPONSE," shall mean plaintiff Bright Response,

LLC, and its agents, officers, employees, representatives and attorneys, and any and all of its predecessor or successor companies, corporations or business entities. 2. "PLUTUS IP HOLDINGS," "YOU," or "YOUR" shall mean Plutus IP Holdings,

and its agents, officers, employees, representatives and attorneys, and any and all of its parent, subsidiary, predecessor or successor companies, corporations or business entities. 3. "ANTHONY ANGOTTI," "FRED COHEN," "JULIE HSU," "ROSANNA

PICCOLO," and "AMY RICE" shall mean the named inventors of U.S. Patent No. 6,411,947. 4. "DOCUMENT" or "DOCUMENTS" shall include all written, graphic or

otherwise recorded material, including without limitation, microfilms or other film records or impressions, tape recordings or computer cards, floppy disks or printouts, any and all papers, photographs, films, recordings, memoranda, books, records, accounts, communications, letters, telegrams, correspondence, notes of meetings, notes of conversations, notes of telephone calls, inter-office memoranda or written communications of any nature, recordings of conversations either in writings or upon any mechanical or electrical recording devices, including electronic mail ("e-mail"), notes, papers, reports, analyses, invoices, canceled checks or check stubs, receipts, minutes of meetings, time sheets, diaries, desk calendars, ledgers, schedules, licenses, financial statements, telephone bills, logs, and any differing versions of any of the foregoing, whether so denominated, formal, informal or otherwise, as well as copies of the foregoing which differ in any way, including by the addition of handwritten notations or other written or printed matter of any nature, from the original. The foregoing specifically includes information stored in a computer database and capable of being generated in documentary form, such as electronic mail. 5. "THING" as used herein means any physical object other than a "DOCUMENT."

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(a)

"PERSON" refers to any individual, corporation, proprietorship,

association, joint venture, company, partnership or other business or legal entity, including governmental bodies and agencies. 6. "REFLECT," "REFLECTING," "RELATE TO," "REFER TO," "RELATING

TO," and "REFERRING TO" shall mean relating to referring to, concerning, mentioning, reflecting, pertaining to, evidencing, involving, describing, discussing, commenting on, embodying, responding to, supporting, contradicting, or constituting (in whole or in part), as the context makes appropriate. 7. 8. The "`947 PATENT" shall mean U.S. Patent No. 6,411,947. The term "RELATED PATENTS/APPLICATIONS" shall mean (1) any United

States or foreign patent or patent application related to the `947 PATENT by way of subject matter or claimed priority date, (2) all parent, grandparent or earlier, divisional, continuation, continuation-in-part, provisional, reissue, reexamination, and foreign counterpart patents and applications of thereof, and/or (3) any patent or patent application filed by one of more of the same applicant(s) (or his or her assignees) that refers to any of (1) or (2) herein. 9. the singular. II. INSTRUCTIONS 1. If any portion of a DOCUMENT or THING is responsive to a request, the entire The singular form of words shall include the plural, and the plural shall include

DOCUMENT or THING shall be produced, redacting only privileged material if any. 2. YOU are to produce the original and each non-identical copy of each

DOCUMENT or THING requested herein that is in YOUR possession, custody or control. 3. DOCUMENTS produced pursuant to these requests shall be produced in the

original files and shall not be shuffled or otherwise rearranged. DOCUMENTS which were stapled, clipped, or otherwise fastened together shall be produced in that form. 4. THINGS produced pursuant to these requests shall be produced in their present

form and shall not be changed or modified in any way.
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5.

In the event that any DOCUMENT or THING called for by these requests or

subsequent requests is to be withheld on the basis of a claim of privilege or immunity from discovery, that DOCUMENT or THING is to be identified by stating: (a) (b) appendices; (c) (d) (e) immunity. 6. In the event that any DOCUMENT or THING called for by these requests or the subject matter(s) of the document; the nature of the privilege or immunity asserted; and any additional facts upon which you would base your claim of privilege or the author(s), addressee(s) and any indicated or blind copyee(s); the DOCUMENT's or THING's date, number of pages and attachments or

subsequent requests has been destroyed or discarded, that DOCUMENT or THING is to be identified by stating: (a) (b) appendices; (c) (d) the DOCUMENT's or THING's subject matter; the date of destruction or discard, manner of destruction or discard, and the author(s), addressee(s) and any indicated or blind copyee(s); the DOCUMENT's or THING's date, number of pages and attachments or

reason for destruction or discard; (e) discard; and (f) whether any copies of the DOCUMENT or THING presently exist and, if the PERSONS who were authorized to carry out such destruction or

so, the name of the custodian of each copy. 6. These Requests shall be deemed continuing so as to require further and

supplemental production in accordance with the Federal Rules of Civil Procedure. III. REQUESTS FOR PRODUCTION

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1.

All DOCUMENTS or THINGS that REFER or RELATE to the `947 PATENT

or any RELATED PATENTS/APPLICATIONS, including without limitation any DOCUMENTS that RELATE to the prosecution, valuation, sale or assignment of the `947 PATENT or RELATED PATENTS/APPLICATIONS and including without limitation any opinions, analyses and/or investigations of infringement of such patents. 2. All DOCUMENTS or THINGS that REFER or RELATE to any attempts to

license, purchase, assign or enforce the `947 PATENT, including any DOCUMENTS that RELATE to the following cases, and/or any other litigation concerning the '947 PATENT: A. B. C. D. Bright Response, LLC f/k/a Polaris IP, LLC v. Google, et al., Case No. 2:07-cv371 CE (E.D. Tex.) Polaris IP, LLC v. Sirius Satellite Radio, Inc., et al., Case No. 2:06-cv-103 TJW (E.D. Tex.) Polaris IP, LLC v. Oracle Corp. et al., Case No. 2:06-cv-179 TJW (E.D. Tex.) Polaris IP, LLC v. Art Technology Group, Inc., Case No. 2:07-cv-116 CE (E.D. Tex.) All DOCUMENTS or THINGS that REFER or RELATE to any compensation,

3.

both monetary and/or non-monetary, that YOU, ANTHONY ANGOTTI, FRED COHEN, JULIE HSU, ROSANNA PICCOLO, AMY RICE, Brightware, Inc., Silicon Valley Bank, Firepond Inc., Orion IP LLC, Clear with Computers Inc., Clear with Computers LLC, Polaris IP LLC, Acclaim Financial Group, Plutus IP LLC, TechDev Holdings or BRIGHT RESPONSE LLC and any listed company's parent, subsidiary, predecessor or successor companies paid or received in connection with the assignment, license, sale, or transfer of any rights in or to the `947 PATENT or RELATED PATENTS/APPLICATIONS. 4. All DOCUMENTS or THINGS that REFER or RELATE to any transaction by,

between or amongst YOU, ANTHONY ANGOTTI, FRED COHEN, JULIE HSU, ROSANNA PICCOLO, AMY RICE, Brightware, Inc., Silicon Valley Bank, Firepond Inc., Clear with Computers Inc., Clear with Computers LLC, Orion IP LLC, Polaris IP LLC, Acclaim Financial

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Group, Plutus IP LLC, TechDev Holdings and/or BRIGHT RESPONSE LLC and any listed company's parent, subsidiary, predecessor or successor companies . 5. All DOCUMENTS or THINGS that REFER or RELATE to YOUR,

ANTHONY ANGOTTI's, FRED COHEN's, JULIE HSU's, ROSANNA PICCOLO's, AMY RICE's, Brightware, Inc.'s, Silicon Valley Bank's, Firepond Inc's, Clear with Computers Inc.'s, Clear with Computers LLC's, Orion IP LLC's, Polaris IP LLC's, Acclaim Financial Group's, Plutus IP LLC's, TechDev Holdings' or BRIGHT RESPONSE LLC's and any listed company's parent, subsidiary, predecessor or successor companies' attempts to market, promote, sell or license products, services or technology related to automatically processing electronic communications, including the use of rule base and/or case base knowledge engines. 6. All agreements, licenses and covenants-not-to-sue that RELATE to the licensing

of patent rights. 7. All DOCUMENTS or THINGS that REFER or RELATE to PLAINTIFF's

change of name from Polaris IP, LLC to BRIGHT RESPONSE, LLC, including the reasons, causes and/or motivations therefor. 8. All DOCUMENTS or THINGS that REFER or RELATE to any

communications or correspondence between YOU and any other person or entity regarding the technology relating to purported inventions disclosed, described, or claimed in the `947 PATENT or RELATED PATENTS/APPLICATIONS. 9. All DOCUMENTS or THINGS that REFER or RELATE to Google's products

and services with respect to automatically processing electronic communications, including any investigations of Google's products and/or attempts to distinguish Google's products from any technology owned or promoted by YOU or ANTHONY ANGOTTI, FRED COHEN, JULIE HSU, ROSANNA PICCOLO, AMY RICE, Brightware, Inc., Silicon Valley Bank, Firepond Inc., Clear with Computers Inc., Clear with Computers LLC, Orion IP LLC, Polaris IP LLC, Acclaim Financial Group, Plutus IP LLC, TechDev Holdings or BRIGHT RESPONSE LLC and any listed company's parent, subsidiary, predecessor or successor companies.
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10.

All DOCUMENTS or THINGS that REFER or RELATE to AOL LLC or

America Online's products and services with respect to automatically processing electronic communications, including any investigations of AOL LLC or America Online's products and services and/or attempts to distinguish AOL LLC or America Online's products and services from any technology owned or promoted by YOU or ANTHONY ANGOTTI, FRED COHEN, JULIE HSU, ROSANNA PICCOLO, AMY RICE, Brightware, Inc., Silicon Valley Bank, Firepond Inc., Clear with Computers Inc., Clear with Computers LLC, Orion IP LLC, Polaris IP LLC, Acclaim Financial Group, Plutus IP LLC, TechDev Holdings or BRIGHT RESPONSE LLC and any listed company's parent, subsidiary, predecessor or successor companies. 11. All DOCUMENTS or THINGS that REFER or RELATE to Yahoo's products

and services with respect to the automatic processing of electronic communications, including any investigations of Yahoo's products and services and/or attempts to distinguish Yahoo's products and services from any technology owned or promoted by YOU or ANTHONY ANGOTTI, FRED COHEN, JULIE HSU, AMY RICE, Brightware Inc., Silicon Valley Bank, Firepond Inc., Clear with Computers Inc., Clear with Computers LLC, Orion IP LLC, Circinus IP LLC, Polaris IP LLC, Acclaim Financial Group, Plutus IP LLC, TechDev Holdings or BRIGHT RESPONSE LLC and any listed company's parent, subsidiary, predecessor or successor companies. 12. All communications with any persons or entities in addition to YOU that have

owned the `947 PATENT or RELATED PATENTS/APPLICATIONS. 13. All DOCUMENTS sent by YOU to any other persons or entities that have

owned the `947 PATENT. 14. All DOCUMENTS received by YOU from any other persons or entities that

have owned the `947 PATENT. 15. All prior art to the `947 PATENT, including publications, references, or

THINGS asserted by third parties to be prior art, or evaluated by YOU as potential prior art, including without limitation any references published in 1997 or prior, referring to
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automatically processing electronic communications, including the use of case base and/or rule base knowledge engines. 16. All DOCUMENTS or THINGS that REFER or RELATE to any and all versions

of software marketed as EZ Reader and/or Art*Enterprise, including any similar and/or subsequent software marketed, sold, offered, or developed under any different names. 17. All DOCUMENTS or THINGS that REFER or RELATE to any sale or offer to

sell any and all versions of software marketed as EZ Reader and/or Art*Enterprise, including any similar and/or subsequent software marketed, sold, offered, or developed under any different names. 18. All DOCUMENTS or THINGS that REFER or RELATE to any

communications or correspondence between or among YOU, FRED COHEN, JULIE HSU, ROSANNA PICCOLO, AMY RICE, Brightware Inc., Silicon Valley Bank, Firepond Inc., Inference Corp., Clear with Computers Inc., Clear with Computers LLC, Orion IP LLC, Circinus IP LLC, Polaris IP LLC, Acclaim Financial Group, Plutus IP LLC, TechDev Holdings, BRIGHT RESPONSE LLC Chase Manhattan Bank, and any listed company's parent, subsidiary, predecessor or successor companies, or any other customer or potential customer regarding any and all versions of software marketed as EZ Reader and/or Art*Enterprise, including any similar and/or subsequent software marketed, sold, offered, or developed under any different names. 19. All DOCUMENTS or THINGS that REFER or RELATE to the licensing

practices of BRIGHT RESPONSE and all other entities managed or owned by YOU. 20. All DOCUMENTS or THINGS that REFER or RELATE to licensing agreements

made by BRIGHT RESPONSE and all other entities managed or owned by YOU. 21. All DOCUMENTS or THINGS that REFER or RELATE to licensing rates

utilized by BRIGHT RESPONSE and all other entities managed or owned by YOU. 22. patents.
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DOCUMENTS sufficient to demonstrate any monies received for the licensing of

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23.

Documents sufficient to demonstrate who or what entities own or control

PLUTUS IP HOLDINGS. 24. Documents sufficient to demonstrate the identities of all entities owned,

controlled, or managed by PLUTUS IP HOLDINGS.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS BRIGHT RESPONSE, LLC v. GOOGLE INC., et al. 2:07-CV-371-CE U.S. District Court, E.D. Texas

TECHDEV'S OBJECTIONS TO SUBPOENA OF GOOGLE, AOL AND AMERICA ONLINE Third-party TechDev Holdings, LLC f/k/a Plutus IP Holdings, LLC ("TechDev") objects to the subpoena issued by "Defendant" on January 12, 2009, as follows: GENERAL STATEMENTS 1. No incidental or implied admissions are intended by the responses herein. The

fact that TechDev has responded to or objected to any discovery request should not be taken as an admission that TechDev accepts or admits the existence of any "fact" set forth or assumed by the same. The fact that TechDev has responded to part or all of any discovery request is not intended to be, and shall not be construed to be, a waiver by TechDev of any part of any objection to the discovery request. The fact that TechDev objects on the basis of privilege or states a willingness to produce any non-privileged documents in its possession, custody or control should not be taken as an indication that relevant privileged documents exist. The fact that TechDev states a willingness to produce any relevant documents in its possession, custody or control should not be taken as an indication that any such documents exist. 2. These responses are made solely for the purpose of this action. Each response is

subject to all objections as to competence, relevance, materiality, propriety, and admissibility, and to any other objections on any grounds that would require the exclusion of any information produced at time of trial. By responding to the discovery requests, TechDev does not waive any