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

Filing 197

RESPONSE in Opposition re 189 MOTION for Sanctions for I/P Engine's Violation of May 2, 2012 Court Order filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit 1)(Sherwood, Jeffrey)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
I/P ENGINE, INC.,
)
)
Plaintiff,
)
v.
)
Civ. Action No. 2:11-cv-512
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)
OPPOSITION TO GOOGLE INC. AND IAC SEARCH & MEDIA, INC.’S
MOTION FOR RULE 37 SANCTIONS FOR
I/P ENGINE’S VIOLATION OF MAY 2, 2012 COURT ORDER
Google Inc. and IAC Search & Media, Inc.’s (collectively “Defendants”) Motion for Rule
37 Sanctions (“Motion”) is premature, improper, and unnecessary. Further, as set forth below,
Defendants’ request to preclude I/P Engine from asserting infringement claims against Google
Search and IAC Search’s Ask Sponsored Listings is moot because I/P Engine has dropped those
allegations from the case.
Had Defendants satisfied this Court’s meet and confer requirement on this issue,
Defendants would have known that I/P Engine had decided to drop those claims. I/P Engine did
not include those systems in its supplemental infringement contentions, an admission that I/P
Engine would not continue pursuing those accused systems, and provided explicit notice of its
decision to Defendants on July 25, 2012. Ex. 1. Moreover, as of July 2, I/P Engine had nothing
more to supplement. Defendants however refuse to withdraw their Motion.
Defendants “asked that Plaintiff confirm whether it would drop its allegations against
Google Search and Ask Sponsored Listings.” Brief in Support of Google Inc. and IAC Search &
Media, Inc.’s Motion for Rule 37 Sanctions (“Brief”) at 4. “Plaintiff agreed to provide a response

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early in the next week of July 9.” Id. Without waiting for a response, Defendants unilaterally
resorted to the filing of this Motion.1 Any perceived prejudice to Defendants was at their own
making. Indeed, counsel for Google and IAC was attending a deposition with counsel for I/P
Engine on July 11, 2012. Instead of simply asking to clarify this issue, they filed the present
motion.
Accordingly, Defendants’ Motion for Sanctions should be denied and Defendants’
request that this Court preclude I/P Engine from asserting infringement claims against Google
Search and IAC Search’s Ask Sponsored Listings should be dismissed as moot.
Dated: July 27, 2012

By: /s/ Jeffrey K. Sherwood
Donald C. Schultz (Virginia Bar No. 30531)
W. Ryan Snow (Virginia Bar No. 47423)
CRENSHAW, WARE & MARTIN PLC
150 West Main Street
Norfolk, VA 23510
Telephone: [phone]
Facsimile: [phone]
Jeffrey K. Sherwood (Virginia Bar No. 19222)
Frank C. Cimino, Jr.
Kenneth W. Brothers
Dawn Rudenko Albert
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff I/P Engine, Inc.

1

As this Court is aware, the decision to pursue or drop claims is not a simple discovery decision
that can be made by counsel instantly, but requires client input and approval.
2
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CERTIFICATE OF SERVICE
I hereby certify that on this 27th day of July, 2012, the foregoing OPPOSITION TO
GOOGLE INC. AND IAC SEARCH AND MEDIA, INC.’S MOTION FOR RULE 37
SANCTIONS FOR I/P ENGINE’S VIOLATION OF MAY 2, 2012 COURT ORDER, was
served via the Court’s CM/ECF system, on the following:

Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Jeffrey K. Sherwood

3
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