I/P Engine, Inc. v. AOL, Inc. et al

Filing 127

Memorandum in Opposition re 104 MOTION to Compel Plaintiff to Supplement its Infringement Contentions (REDACTED PUBLIC VERSION) filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25)(Sherwood, Jeffrey)

Exhibit 24 

DICKSTEINSHAPI ROllP
1825 Eye Street NW I Washington, DC 20006-5403
[phone] I FAX [phone] I dicksteinshapiro.com

TEL

February 9, 2012

Via E-mail

David Perlson, Esq.
Quinn Emanuel Urquhart & Sullivan, LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
Re:

Google's Response to IIP Engine's Interrogatory No.6

Dear David:
You recently have made statements in emails and during meet and confers regarding a noninfringement theory that your clients have never disclosed in response to IIP Engine's
Interrogatory No.6. It is apparent that Google has developed a defense but not disclosed the
factual basis for it to IIP Engine. Google, and your other clients, should immediately supplement
their interrogatory responses.
In your email dated February 6, 2012, you stated that Google's technical production shows that
"the accused products do not use collaborative filtering" and that "to the extent Plaintiff is going
to continue its case, Plaintiff would need to interpret the patent in a way to eliminate
collaborative filtering." During the February 7, 2012 meet and confer, you asserted that lIP
Engine's contentions are absurd because you claimed that there was no basis for collaborative
filtering. It is apparent that Google strongly believes that it has a non-infringement position
related to "collaborative filtering." No such position has been disclosed in response to lIP
Engine's Interrogatory No.6. Your clients have a duty to supplement their responses to provide
the basis for this contention.
IIP Engine, in Interrogatory No.6 to Google, specifically requests that Google "identify and
describe each basis for Google's contention that it is not a direct infringer, including, but not
limited to all facts, documents, communications andlor events which Google contends are
pertinent thereto." Google has had IIP Engine's detailed infringement contentions since
November 7, 2011 and has had more than sufficient time to develop the factual basis for its
apparent contentions of non-infringement. Similar interrogatories have been served upon your
other clients in this action.
Google's existing response to Interrogatory No.6 is plainly deficient. Despite Google's recent
assertions, Google's response does not include any mention of "collaborative filtering" nor does
it contain a single fact or document that would support any non-infringement position. As

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Washington, DC
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DICKSTEI NS HAP I ROLLP
David Perlson, Esq.
February 9, 2012
Page 2
Google is no doubt aware, a bare recitation that certain claim features are absent from its system
is insufficient, and Google must supplement its responses to include facts and documents that
form the basis of its non-infringement position. See, e.g., Performance Pricing, Inc. v. Google,
Inc. et al., No. 2:07-cv-0432 (E.D. Tex. May 27,2009) (ordering Google to supplement its
interrogatory responses to identify the facts and documents that form the basis of its noninfringement positions). lIP Engine requests that Google make good on its promise, in its
response to Interrogatory No.6, that it will "supplement its response to Interrogatory No.6 to
reference relevant documents to the extent reasonable."
Absent prompt supplementation, lIP Engine reserves its right to seek evidentiary sanctions for
Google's continued withholding of information responsive to liP Engine's Interrogatory No.6.
See, e.g., Transclean Corp. v. Bridgewood Services, Inc., 290 F.3d 1364 (Fed. Cir. 2002)
(affirming discovery sanctions that precluded the defendant from arguing non-infringement
positions for failure to respond to interrogatories).
Please confirm that Google will be supplementing its response to Interrogatory No.6
immediately. liP Engine remains available for a meet and confer to discuss this issue.

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Stephen E. Noona
David Bilsker
Kenneth W. Brothers
Jeffrey K. Sherwood
DeAnna Allen

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