Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Filing 684

RESPONSE in Opposition re #668 Opposed MOTION for Leave to Serve an Expert Report for Reexamination Procedures in the United States Patent and TrademarkOffice filed by Bedrock Computer Technologies, LLC. (Attachments: #1 Exhibit A, #2 Text of Proposed Order)(Cawley, Douglas)

Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al

Doc. 684 Att. 1

Exhibit A

Dockets.Justia.com

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS TYLER DIVISION BEDROCK COMPUTER ) DOCKET NO. 6:09-cv-269 TECHNOLOGIES, LLC ) ) VS. ) TYLER, TEXAS ) FEBRUARY 16, 2011 SOFTLAYER TECHNOLOGIES, ) INC., ET AL ) 9:30 A.M. MOTION HEARING BEFORE THE HONORABLE JOHN D. LOVE UNITED STATES MAGISTRATE JUDGE APPEARANCES: FOR THE PLAINTIFF: MR. DOUGLAS A. CAWLEY MR. JASON D. CASSADY MR. J. AUSTIN CURRY MR. SCOTT W. HEJNY MR. PHILLIP M. AURENTZ MCKOOL SMITH 300 Crescent Court Suite 1500 Dallas, TX 75201 dcawley@mckool smith.com [e-mail] [e-mail] [e-mail] [e-mail] 214-978-4000

COURT REPORTER:

MS. CHRISTY HUMPHRIES ARK-LA-TEX REPORTING & VIDEO 108 S. BROADWAY AVENUE TYLER, TEXAS 75702

(PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY, TRANSCRIPT PRODUCED ON CAT SYSTEM.)

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Bedrock Computer v. Softlayer Technologies

February 16, 2011

2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. DANIELLE THOMPSON WILLIAMS KILPATRICK, TOWNSEND & STOCKTON, LLP 1001 W. Fourth Street Winston-Salem, NC 27101 [e-mail] 336-607-7500 FOR THE DEFENDANTS AOL AND MYSPACE: MR. DERON DACUS RAMEY & FLOCK 100 East Ferguson Suite 500 Tyler, TX 75702 [e-mail] 903/597-3301 MR. WILLIAM H. BOICE KILPATRICK, TOWNSEND & STOCKTON, LLP 1100 Peachtree Street Suite 2800 Atlanta, GA 30309 [e-mail] 404-815-6464 FOR THE DEFENDANTS SOFTLAYER TECHNOLOGIES AND AMAZON.COM, INC.: MR. J. THAD HEARTFIELD The Heartfield Law Firm 2195 Dowlen Road Beaumont, TX 77706 [e-mail] 409-866-3318 APPEARANCES (CONTD): FOR THE PLAINTIFF: MR. CHRISTOPHER BUNT MR. A. TOM GORHAM PARKER, BUNT & AINSWORTH, P.C. 100 E. Ferguson, Suite 1114 Tyler, TX 75702 [e-mail] [e-mail] 903-531-3535

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Bedrock Computer v. Softlayer Technologies

February 16, 2011

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FOR THE DEFENDANT YAHOO: MR. FRANK G. SMITH, III ALSTON & BIRD, LLP One Atlantic Center 1201 West Peachtree Street Atlanta, GA 30309 [e-mail] 404-881-7240 MR. LOUIS A. KARASIK ALSTON & BIRD, LLP 333 South Hope Street 16th Floor Los Angeles, CA 90071 [e-mail] 213-576-1100 APPEARANCES (CONTD): MR. ALAN L. WHITEHURST ALSTON & BIRD, LLP 950 F Street, NW Washington, DC 20004 [e-mail] 202-756-3491

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MR. YAR R. CHAIKOVSKY MCDERMOTT WILL & EMERY, LLP 275 Middlefield Road Suite 100 Menlo Park, CA 94025 [e-mail] MS. JENNIFER H. DOAN HALTOM and DOAN 6500 Summerhill Road Crown Executive Center, Suite 100 P.O. Box 6227 Texarkana, TX 75505 [e-mail] 903/255-1000 MR. FAY E. MORISSEAU MCDERMOTT WILL & EMERY 1000 Louisiana, Suite 3900 Houston, TX 77002 [e-mail] 713-653-1700

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Bedrock Computer v. Softlayer Technologies

February 16, 2011

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES (CONTD): FOR THE DEFENDANTS MATCH.COM AND GOOGLE: MR. MIKE JONES POTTER MINTON, PC 110 N. College 500 Plaza Tower Tyler, TX 75702 [e-mail] 903-597-8311 MS. EVETTE D. PENNYPACKER MR. CLAUDE M. STERN QUINN EMANUEL URQUHART & SULLIVAN 555 Twin Dolphin Drive 5th Floor Redwood Shores, CA 94065 [e-mail] [e-mail] 650-801-5000

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Bedrock Computer v. Softlayer Technologies

February 16, 2011

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Honor. P R O C E E D I N G S THE COURT: may call the case. COURTROOM DEPUTY: The Court calls Case All right. Ms. Morris, you

Number 6:09-cv-269, Bedrock Computer Technologies versus Softlayer Technologies, et al. THE COURT: MR. CAWLEY: Announcements? Good morning, Your Honor.

Douglas Cawley for the Plaintiff Bedrock Technologies. We're ready to proceed. THE COURT: Thank you.

For the Defendants? MR. HEARTFIELD: Good morning, Your

Thad Heartfield with Bill Boice and Danielle We're here for Softlayer and Amazon. We're

Williams. ready.

MR. DACUS:

Morning, Judge.

Deron Dacus

here with Frank Smith, Alan Whitehurst, Lou Karasik on behalf of AOL and MySpace, and also Chris Day here with AOL, Your Honor. We're ready to proceed. Morning, Your Honor. Jennifer

MS. DOAN:

Doan, and I'm here with Fay Morriseau, Yar Chaikovsky, and David Brightman from Yahoo. MR. JONES: Your Honor, Mike Jones for

Google and Match.com with Claude Stern and Evette

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Bedrock Computer v. Softlayer Technologies

February 16, 2011

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Honor. Am I mistaken? MR. STERN: I don't know. Why would -Pennypacker, if you can see her behind the post. THE COURT: All right. All right. Anyone else?

Well, thank you.

We're here for a motion hearing on the Defendants' Motion to Stay, 347. I appreciate the fact

that a couple of the motions that we had set today have been resolved or gone away. motion. So we're down to that

I wanted to discuss the willfulness issue, and

then I wanted to also just follow up by discussing how ultimately, if this case goes to trial, how it is going to be tried. So, let's start first -- I want to address the reexam issue that has been brought to the Court's attention to the motion to stay. MR. CAWLEY: I think that's moot, Your

if it's moot, I'm not sure why. THE COURT: Well, what I want -- I'm not

necessarily, I guess, talking about stay as much as I am what claims are going to go to trial. As I stated

in my order, and y'all will have to update me on what the discussions have been post the order that I issued leading up to this hearing. But, as I stated, I -- my

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Bedrock Computer v. Softlayer Technologies

February 16, 2011

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court, I think that's a reasonable request. But I

think that y'all can just sign something and avoid all that, you know. MR. CASSADY: going to happen. Your Honor, that's what's

You're not going to hear about this

again unless there's some ridiculous malfunction. THE COURT: Okay. All right. Well,

we'll move on then from that. All right. Well, let me just mention --

and I don't want -- I think this is a good resolution here. I think we can go forward on this. I do just want to mention, and I don't want to get into it, I don't think today, because we'll just have to see how this develops. But as this --

well, let me -- update me on is the -- is basically what's going on here now in the reexam is that there's an -- just a waiting of the final reissued certificate? MR. CASSADY: Your Honor, there's a

notice of allowance on various claims, and we're just waiting for a final certificate. I'll note for the Court that another reexam has been filed on, I think, basically the same art that was before the reexam before. We just don't But the

know what's going to happen with that reexam.

point is there's notice of allowance, which usually

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Bedrock Computer v. Softlayer Technologies

February 16, 2011

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just has a -- just is an accounting issue, it's waiting to go through the process of actually being a final allowance. THE COURT: Okay. Well, we're going to If issues

go forward in the way we've discussed today.

turn up, you can draw them to the Court's attention as far as what effect the ultimate reissuance of the certificate has on this litigation. But at this point,

we're going to move forward and we'll just see what further developments occur related to the reexam. All right. Well, I guess then what I

want to move on to is -- well, let me first address the willfulness issue. I wanted to address that with the

parties, because I want to be clear on -- I received your letter briefs and reviewed them. What I want to be clear on from Bedrock's perspective is two things, I guess; one being, as I understand your letter brief, your basis for asserting willfulness in this case has to do with the fact that -- I'm trying to find the date here -- well, essentially the reemerge -- the emergence from reexamination created a situation where there was an objectively high likelihood the Defendants are infringing a valid patent. So I guess I first want to be clear on is

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Bedrock Computer v. Softlayer Technologies

February 16, 2011

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that the basis, either solely or I guess primarily, for a willfulness allegation here? MR. HEJNY: That's correct, Your Honor.

That's one of the bases for our willfulness allegations. The first objective basis would be the fact that Bedrock prevailed on almost every claim construction position in the provisional order that you issued on October 29th, and in the final memorandum and opinion that came out on January 11th. As has been

discussed before, on January 14th Bedrock received a notice of intent to issue the reexamination certificate in the case, and those two factors, Your Honor, Bedrock believes establish a likelihood that there is no reason why Defendants are acting without objective recklessness. THE COURT: So your willfulness case runs

from -- whatever it is -- November of 2010 to January 2011. So you've got about a four-, five-month window Is that what's going on

here of willful infringement? here? MR. HEJNY: THE COURT:

That's correct Your Honor. Well, I guess; one, I wonder

in such a situation as you've presented, what issue is there for the jury to decide? It's almost as if there

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Bedrock Computer v. Softlayer Technologies

February 16, 2011

66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 _______________________________ Christy Humphries, CSR, RPR Date: February 28, 2011 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. --ooOoo--

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