Anascape, Ltd v. Microsoft Corp. et al

Filing 138

RESPONSE to 137 Notice (Other) RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY by Anascape, Ltd. (Baxter, Samuel)

Anascape, Ltd v. Microsoft Corp. et al

Doc. 138

Case 9:06-cv-00158-RHC

Document 138

Filed 08/24/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION Anascape, Ltd., Plaintiff, v. Microsoft Corp., and Nintendo of America, Inc., Defendants. Civil Action No. 9:06-cv-158-RC

RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY Anascape, Ltd. submits the following Response to Microsoft's submission of supplemental authority addressing issues that arose at the claim construction hearing. Anascape submits the following cases for the Court's consideration regarding claim differentiation: Free Motion Fitness v. Cybex, Int'l, 423 F.3d 1343, 1351 (Fed. Cir. 2005). (refusing to apply a "single cable" limitation to the independent claims when "dependent claims limiting the claim to a single cable confirm that the independent claims may encompass more than one cable," even though a cited dependent claim, claim 7 of the '061 Patent, contained other limitations besides the "single cable" limitation). RF Del. v. Pac. Keystone Techs., 326 F.3d 1255, 1263-64 (Fed. Cir. 2003) (refusing to apply a "flocculation layer" limitation to an independent claim when a separate independent claim had a "flocculation layer" claim limitation, and "a major difference between [those two claims] is the latter's addition of a flocculation layer," despite the specification's teaching that " a filter bed in accordance with this invention includes an upstream, static flocculation layer . . .").

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Anascape responds to the citations submitted by Microsoft as follows: In Kraft Foods, Inc. v. Int'l Trading Co., 203 F.3d 1362 (Fed. Cir. 2000), a Federal Circuit panel held that the claim term "protecting back panel" must be "relatively rigid" after considering that (1) the patentee relied on rigid nature of the back panel to distinguish prior art during the prosecution of the patent-in-suit; and (2) the patentee did not "provide any support for this broad definition or otherwise demonstrate that this is the normal and ordinary meaning." Id. at 1367-68. In contrast, Anascape provided ample support for its construction of "pressuresensitive variable conductance analog sensor" in its claim construction briefing, and no analogous examiner statements are found in the prosecution history of the Microsoft-Infringed Patents, which distinguishes the present case from Kraft Foods. In Andersen Corp. v. Fiber Composites, LLC, 474 F.3d 1361, 1369 (Fed. Cir. 2007), the Federal Circuit relied heavily on limiting statements from the prosecution history to support its construction, finding that the prosecution history and the statements in the specification overcame the presumption of claim differentiation. In this case, there are no such statements found in the prosecution history of the Microsoft-Infringed Patents.

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DATED: August 24, 2007

Respectfully submitted, McKOOL SMITH PC /s/ Sam Baxter Sam Baxter Lead Attorney Texas State Bar No. 01938000 [e-mail] P.O. Box O, 104 E. Houston Street, Suite 300 Marshall, Texas 75670 Telephone: [phone] Facsimile: [phone] Theodore Stevenson, III Texas State Bar No. 19196650 [e-mail] Luke F. McLeroy Texas State Bar No. 24041455 [e-mail] Anthony M. Garza Texas State Bar No. 24050644 [e-mail] McKool Smith PC 300 Crescent Court, Suite 1500 Dallas, Texas 75201 Telephone: [phone] Telecopier: [phone] Robert M. Parker Texas State Bar No. 15498000 [e-mail] Robert Christopher Bunt Texas State Bar No. 00787165 [e-mail] Charles Ainsworth Texas State Bar No. 00783521 [e-mail] Parker, Bunt & Ainsworth P.C. 100 E. Ferguson Street, Suite 1114 Tyler, Texas 75702 Telephone: [phone] Telecopier: [phone] ATTORNEYS FOR PLAINTIFF ANASCAPE, LTD.

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CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a) on August 24, 2007. As such, this notice was served on all counsel who has consented to electronic service. Local Rule CV-5(a)(3)(A). /s/ Anthony M. Garza Anthony M. Garza

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