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

Filing 201

Memorandum in Support re 200 MOTION for Sanctions Motion for Discovery Sanctions Regarding Untimely Disclosed Prior Art 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 Proposed Order)(Sherwood, Jeffrey)

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Exhibit 2  UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION __________________________________________ ) ) ) Plaintiff, ) v. ) ) AOL, INC. et al., ) ) Defendants. ) __________________________________________) I/P ENGINE, INC., Civ. Action No. 2:11-cv-512 PLAINTIFF I/P ENGINE, INC.’S FIRST SET OF INTERROGATORIES TO DEFENDANT GOOGLE, INC. Plaintiff I/P Engine, Inc. (“I/P Engine”) directs the following Interrogatories to Defendant Google, Inc. (“Google”) to be answered in accordance with Rule 33 of the Federal Rules of Civil Procedure and Rule 26 of the Local Rules of the United States District Court for the Eastern District of Virginia. Google is required to answer these Interrogatories separately and fully in writing, under oath, and to serve a copy of its answers upon counsel for I/P Engine, Dickstein Shapiro LLP, 1825 Eye Street, N.W., Washington, D.C. 20006. These Interrogatories are to be interpreted and answered in accordance with the Federal Rules of Civil Procedure, the Local Rules of the Court, the Judge’s procedures, the Instructions and Definitions below, and the Stipulation entered into by the parties on November 4, 2011. INSTRUCTIONS 1. In answering these Interrogatories, Google (as defined below) is required to furnish under oath all information that is in its possession, custody or control, or otherwise available to DSMDB-2961814 Google (as defined below), including information in the possession of its present and former attorneys. 2. Each Interrogatory shall be accorded a separate answer. 3. Estimates or approximations should be given when, but only when, precise data cannot be supplied. 4. The source, sources or derivation of each answer should be separately set forth and identified with a description sufficient for use in a subpoena duces tecum, unless the person signing the answers to the Interrogatories under oath knows of his or her personal and direct knowledge of the facts or information forming the basis of all answers given. 5. For each document and thing produced in response to these Interrogatories, identify the individual from whose files the document was produced or, if the identity of the person is not known, identify the unit, group or department from whose files the document was produced. 6. If any interrogatory cannot be answered in full, it should be answered to the extent possible, and accompanied with an explanation as to (a) the nature of the information or knowledge that cannot be furnished; and (b) why the remainder cannot be answered. 7. These Interrogatories shall be deemed continuing so as to require supplemental answers pursuant to Rule 26(e) of the Federal Rules of Civil Procedure. 8. Google (as defined below) must comply with all other requirements contained in Rule 26 of the Federal Rules of Civil Procedure. 9. In answering the following Interrogatories, if privilege or immunity is alleged as to information or documents, or if an interrogatory is otherwise not answered in full, Google (as defined below) shall state the specific grounds for not answering in full, identify, as that term is 2 DSMDB-2961814 defined herein, all information or documents for which privilege or immunity is claimed, and shall answer the interrogatory to the extent to which it is not objected to. DEFINITIONS A. “Defendant Google, Inc.” means the Defendant in this lawsuit, Google, Inc. and includes its respective predecessors, subsidiaries, divisions, parents or otherwise related entities and/or divisions thereof, and includes directors, officers, present and former employees, agents, representatives and attorneys of such entities and/or divisions thereof. B. “I/P Engine” means the Plaintiff in this lawsuit, I/P Engine, Inc. C. The “‘420 Patent” means U.S. Patent No. 6,314,420. D. The “‘664 Patent” means U.S. Patent No. 6,775,664. E. “Person” is defined as any natural person or any business, legal, or governmental entity or association. F. “Director,” “officer,” “employee,” “agent,” and “representative” means any individual serving as such and any individual serving at any relevant time in such capacity, even though no longer serving in such capacity. Google’s “representatives” refers to and includes Google’s officers, directors, agents, employees, attorneys, and consultants. G. “Date” means the exact day, month and year, if ascertainable, or, if not, the best approximation (including relationship to other events). H. The terms “relating to” and “referring to” shall be interpreted so as to encompass the scope of discovery set forth in Rule 26(b) of the Federal Rules of Civil Procedure. I. “Document” is defined to be synonymous in meaning and equal in scope to the usage of this term in Rule 34 of the Federal Rules of Civil Procedure and Local Rule 26 of the 3 DSMDB-2961814 Court. A draft, non-identical copy, or version bearing any annotation or marking is a separate document within the meaning of this term. J. “Identify”, “identification”, “describe”, or “description” mean: (i) “Identify” (with respect to person) means to give, to the extent known, the person’s full name, present or last known address, and when referring to a natural person, additionally, the present or last known place of employment. Once a person has been identified in accordance with this subparagraph, only the name of that person need be listed in response to subsequent discovery requesting the identification of that person. (ii) “Identify” (with respect to a document) means to give, to the extent known, (a) type of document; (b) general subject matter; (c) date of document; and (d) author(s), addressee(s), and recipient(s), (e) for documents that have existed but are no longer existing, include the type of document, the identity of its last known custodian, and the date on and circumstances under which the document was lost, destroyed, or otherwise became unavailable; (f) for documents no longer in your possession, custody or control, or the possession, custody or control of your agents (including, but not limited to, attorneys) include the date on and circumstances under which the document was disposed of, destroyed, surrendered from or otherwise left your possession, custody or control, the identity of its present (or last known) custodian and the location of such document, if known; and 4 DSMDB-2961814 (g) in lieu of identification of a document, you may, simultaneously with the filing of your answers to these Interrogatories, produce such document for inspection and copying by Plaintiff, at the office of Plaintiff’s counsel, Dickstein Shapiro LLP, 1825 Eye Street, N.W., Washington, D.C. 20006, provided that such document is segregated in such a way as to indicate the particular Interrogatory to which it is responsive. (iii) “Identify” (with respect to communications) means to give the date of such communication, the identification of each party to the communication, the place at which each party was located, the substance thereof and the method of such communications (e.g., in person, by telephone, by electronic mail or otherwise). (iv) “Identify” (with respect to an oral statement (including a conversation, conference, or other oral contact)) means to identify all persons making the statement, all persons to whom such statement was made, and all other persons present at the time of such statement; state the date of such statement; state the place where such statement was made, or if by telephone, the person participating in the telephone call, the person making the call, and the places where the persons participating in the call were located; and state the substance of such statement. K. “Describe” and/or “state” means to set forth fully and unambiguously every fact relevant to the subject of the Interrogatory, of which you (including your agents and representatives) have knowledge or information. L. “Concerning” means referring to, describing, evidencing, or constituting. M. “Communication” means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise). 5 DSMDB-2961814 N. Whenever an Interrogatory refers to or seeks a description of an act, transaction, occurrence, dealing or instance, the answer shall state at least: (i) the date, including year, month and day, when it occurred; (ii) the place where it occurred; (iii) the identity of each person participating therein; (iv) on whose behalf each such person participated or purported to participate; (v) the nature, subject matter, and circumstances surrounding it; (vi) the nature and substance of all conversations or oral communications occurring during, or in connection with it; and (vii) the identity of all documents concerning it. O. Any word written in the singular herein shall be construed as plural or vice versa when necessary to facilitate the response to any Interrogatory. P. “And” as well as “or” shall be construed disjunctively or conjunctively as necessary in order to bring within the scope of the Interrogatory all responses which otherwise might be construed to be outside its scope. Q. “Search Technology incorporating User Feedback” means any product, service, method, or system used by, or on behalf of, Google to select search results for display on search results pages by considering how well search results match the user’s search query and using data relating to other users’ feedback to the search result (systems including, but not limited to, systems such as Google’s organic search systems and search advertising systems). In regards to this definition, Plaintiff seeks responses directed to search systems utilizing a calculation, algorithm, value or score that uses, in some way, user feedback to determine search results for presentation on a search results page in response to a user query. 6 DSMDB-2961814 R. “Publisher” means any past, current or potential member of the Google Network. S. “Google Network” means Google’s network of third party customers that use Google’s advertising systems to deliver relevant advertisements to their own websites. T. “Relevance Score” means any variable, score, and/or value that is used to determine advertisement search results for presentation on a search results page in response to a user query, and derived from at least the factors of: (1) the relevance of the content of the search results to the user search query including, but not limited to, the landing page or the advertisement text to the user search query, and (2) data relating to users’ responses to the search result including, but not limited to, an advertisement’s Click Through Rate. In regards to this definition, Plaintiff seeks responses directed to systems utilizing a calculation, algorithm, value or score that uses factors (1) and (2) above to determine advertisement search results for presentation on a search results page in response to a user query (e.g., systems including, but not limited to, systems such as Google’s AdWords system and Google’s AdSense for Search system). U. “Click Through Rate” means the rate at which end users click a search result or advertisement search result, e.g., the number of clicks on a search result divided by the number of times the search result is shown (impressions), and is typically expressed as a percentage. INTERROGATORIES INTERROGATORY NO. 1 Identify, using the specific model number, version number, edition number and/or release number, as well as internal Google project name and corresponding software release(s), each 7 DSMDB-2961814 Search Technology incorporating User Feedback that from January 1, 2002 to the present was used (commercially and/or tested), sold, or offered for sale in the United States, imported into the United States and/or exported out of the United States, or that are intended for use in the United States, by or on behalf of Google. INTERROGATORY NO. 2 Identify, using the specific model number, version number, edition number and/or release number, as well as internal Google project name and corresponding software release(s), each Google system using a Relevance Score that from January 1, 2002 to the present was used (commercially and/or tested), sold, or offered for sale in the United States, imported into the United States and/or exported out of the United States, or that are intended for use in the United States, by or on behalf of Google. INTERROGATORY NO. 3 Identify all representatives of Google or other persons or entities on behalf of Google who have actively marketed or sold, or are currently actively marketing or selling, the use of each Google system identified in response to Plaintiff’s Interrogatory No. 2. INTERROGATORY NO. 4 For each Google system identified in response to Plaintiff’s Interrogatory No. 2, describe Google’s corporate policy regarding indemnification, its rights and obligations under indemnification, its corporate policy regarding obtaining insurance for patent infringement, and its rights and obligations under any obtained insurance agreement regarding patent infringement. 8 DSMDB-2961814 INTERROGATORY NO. 5 For each Google system identified in response to Plaintiff’s Interrogatory No. 2, describe the algorithm or algorithms used to determine which advertisements are displayed in response to a user query including, but not limited to, the calculation, algorithm, value or score of “Quality Score.” INTERROGATORY NO. 6 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 and/or events which Google contends are pertinent thereto, and identify the persons having the most knowledge of such facts, documents, communications and/or events. INTERROGATORY NO. 7 Identify and describe each basis for Google’s contention that it is not an indirect infringer, including its contention that it is not liable for infringement by inducement and that it is not a contributory infringer including, but not limited to, all facts, documents, communications and/or events which Google contends are pertinent thereto, and identify the persons having the most knowledge of such facts, documents, communications and/or events. INTERROGATORY NO. 8 Identify and describe each basis for Google’s contention that the claims of the ‘420 and ‘664 Patents are invalid including, but not limited to, all facts, dates, documents, communications and/or events, including prior art, which Google contends are pertinent thereto, and identify the persons having the most knowledge of such facts, dates, documents, communications and/or events. 9 DSMDB-2961814 INTERROGATORY NO. 9 Identify any system, and when it was developed, that Google intends to rely upon in this litigation as a non-infringing alternative to each Google system identified in response to Interrogatory No. 2 including, but not limited to, all facts, documents, communications and/or events which Google contends are pertinent thereto, and identify the persons having the most knowledge of such facts, documents, communications and/or events. INTERROGATORY NO. 10 Identify when and under what circumstances Google first became aware of the existence of the ‘420 or ‘664 Patents, and describe what action was taken by Google, including describing any subsequent reviews, studies, analyses or examinations of the ‘420 or ‘664 Patents, their scope, or their claims, including the date, author and recipients of such reviews, studies, analyses or examinations. Dated: November 7, 2011 By: /s/ Charles J. Monterio, Jr. Jeffrey K. Sherwood Frank C. Cimino, Jr. Kenneth W. Brothers DeAnna Allen Charles J. Monterio, Jr. DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 Richard H. Ottinger VANDEVENTER BLACK LLP 500 World Trade Center Norfolk, VA 23510 Telephone: (757) 446-8600 Facsimile: (757) 446-8670 Counsel for Plaintiff I/P Engine, Inc. 10 DSMDB-2961814 CERTIFICATE OF SERVICE I hereby certify that on this 7th day of November, 2011, the foregoing Plaintiff I/P Engine, Inc.’s First Set of Interrogatories to Defendant Google, Inc. was served via email, on the following: Stephen Edward Noona Kaufman & Canoles, P.C. 150 W Main St Suite 2100 Norfolk, VA 23510 senoona@kaufcan.com David Bilsker David Perlson Quinn Emanuel Urquhart & Sullivan LLP 50 California Street, 22nd Floor San Francisco, CA 94111 davidbilsker@quinnemanuel.com davidperlson@quinnemanuel.com Robert L. Burns Finnegan, Henderson, Farabow, Garrett & Dunner, LLP Two Freedom Square 11955 Freedom Drive Reston, VA 20190 robert.burns@finnegan.com Cortney S. Alexander Finnegan, Henderson, Farabow, Garrett & Dunner, LLP 3500 SunTrust Plaza 303 Peachtree Street, NE Atlanta, GA 94111 cortney.alexander@finnegan.com /s/ Armands Chagnon Senior Paralegal DSMDB-2997346v1

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