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

Filing 211

Declaration re 210 Brief in Support of Jen Ghaussy in Support of Motion to Compel Plaintiff to Produce Documents by Google Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Noona, Stephen)

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EXHIBIT E www.VringolRcom Vringo and Innovate/Protect Announce Merger EXHIBIT p 1-'\ (- 2O'3" IRE 0021932 CautIonary Note Regerdng Fcrward-Locldng Statements: Statements in this presentation regarding the proposed transaction between Vringo, Inc. ("Vringo") and Innovate/Protect, Inc. ("Innovate/Protect'); the expected timetable for completing the transaction; the potential value created by the proposed merger for Vringo's and Innovate/Protect's stockholders; the potential of the combined companies' technology platform; our respective or combined ability to raise capital to fund our combined operations and business plan; the continued listing of Vringo's or the merged company's securities on the NYSE Amex; market acceptance of Vringo products; our collective ability to protect our intellectual property rights; competition from ether providers and products; our ability to license and monetize the patents owned by Innovate/Protect, including the outcome of the litigation against online search firms and other companies; the combined company's management and board of directors; and any other statements about Vringo's or Innovate/Protect's management teams' future expectations, belIefs, goals, plans or prospects constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Any statements that are not statements of historical fact (including statements containing the words 'believes," "plans," "could," "anticipates," "expects," "estimates," "plans," "should," "target" "will,' "would" and similar expressions) should also be considered to be forward-looking statements, There are a number of Important factors that could cause actual results or events to differ materially from those indicated by such forward-looking statements, Including: the risk that Vringo and Innovate/Protect may not be able to complete the proposed transaction; the inability to realize the potential value created by the proposed merger for Yringo's and Innovate/Protect's stockholders; our respective or combined inability to raise capital to fund our combined operations and business plan; Vringo's or the merged company's inabilityto maintain the listing of our securities on the NYSE Amex; the potential lack of market acceptance of Vringo's products; our collective inability to protect our intellectual property rights; potential competition from other providers and products; our Inability to license and monetize the patents owned by Innovate/Protect, Including the outcome of the litigation against online search firms and other companies; and other risks end uncertainties more fully described in Vringc's Annual Report on Form 10-K for the year ended December 31, 2010 and its Quarterly Reports on Form 10-Q for the quarters ended March 31, 2011, June 30, 2011 and September 30, 2011, each as filed with the U.S. Securities and Exchange Commission ("SEC'), as well as the other filings that Yringo makes with the SEC. Investors and stockholders are also urged to read the risk factors set forth in the proxy statement/prospectus carefully when they are available, In addition, the statements in this presentation reflect our expectations and beliefs as of the date of this release. We anticipate that subsequent events and developments will cause our expectations and beliefs to change. However, while we may elect to update these forward-looking statements publicly at some point in the future, we specifically disclaim any obligation to do so, whether as a result of new information, future events or otherwise. These forward-looking statements should not be relied upon as representingour views as of any date after the date of this presentation. Important Additional lnfonnation Will Be Filed Wth the SEC: This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities of Yringo, or Innovate/Protect or the solicitation of any vote or approval. In connection with the proposed transaction, Vringo will file with the SEC a Registration Statement on Form 5-4 containing a proxy statement/prospectus. The proxy statement/prospectus will contain important information about Vringo, Innovate/Protect, the transaction and related matters. Vringo will mail or otherwise deliver the proxy statement/prospectus to its stockholders and the stockhoiders of Innovate/Protect when it becomes available, investors and security holders of Vringo and Innovate/Protect are urged to read carefully the proxy statement/prospectus relating to the merger (including any amendments or supplements thereto) in its entirety when it is available, because it will contain Important information about the proposed transaction. investors and security holders of Vringo will be able to obtain free copies of the proxy statement/prospectus for the proposed merger (when It is available) and other documents flied with the .sec.gov. In addition, investors and security holders of Vringo and Innovate/Protect will be able to obtain free copIes of the SEC by Vringo through the website maintained by the SEC at proxy statement/prospectus for the proposed merger (when it is available) by contacting Vringo, Inc., Attn.: Cliff Weinstein, VP Corporate Development, at 44 W. 28th Street, New York, New York 10001, or by e-mail at cliff@vringo.com. Investors and security holders of Innovate/Protect will also be able to obtain free copies of the proxy statement/prospectus for the merger by contacting Innovate/Protect, Attn.: Chief Operating Officer, 380 Madison Avenue, 22nd Floor; New York, NY 10017, or by e-maIl at lnfo@innovateprotect.com. Vringo and Innovate/Protect, and their respective directors and certain of their executive officers, may be deemed to be participants in the solicitation of proxies in respect of the transactions contemplated by the agreement between Yringo and innovate/Protect, information regarding Vjingo's directors and executive officers is contained in Vringo's Annual Report on Form 10-K for the fiscal year ended December 31, 2010, which was filed with the SEC on March 31, 2011, and in its proxy statement prepared In connection with Its 2011 Annual MeetIng of Stockholders, which was filed with the SEC on May 25, 2011. information regarding Innovate/Protect's directors and officers and a more complete description of the interests of Vringo's directors and officers in the proposed transaction will be available in the proxy statement/prospectus that will be filed by Vringo with the SEC in connection with the proposed transaction. S S. IRE 002 1933 I Merger at intersection of two high profile technology sectors: Mobile Social + Patents S. I I Innovation Platform + 2 proven technology pioneers I Foundational patents covering internet search and advertising + mobile advertising and video sharing I I/P Engine vs. Google, AOL, Gannett, IAC & Target u Proven litigation team I Jury trial scheduled for October 16th, 2012 I Unprecedented case provides significant potential upside in near term I Sa 0 0 IPE 0021934 Global distribution platform for mobile social applications and services. Over I billion mobile interactions per year take place on Vringo's rapidly growing applications and services. Reality TV App Star Academy S I IPE 002193 Valuable Patent Portfolio with 20+ Patent Applications Filed and 3 Issued Qt 201± PRES&RELEAE : 1. Mobile Video Sharing A Technology relatingto mobile video sharing on newer smartphone handsets Carrier Partnerships 7,87 7,746 Technology for displaying a mobile advertising clip and enablingthe user to initiate a call with one click to the advertiser. Ability to personalize app installation files for specific individual users Content Providers Handsets :1 --------- .: NICICIA Connectn People EMI 2 dbcomo C (c admob UMI wam& mush group C Today's merger announcement reflects an extremely strong strategic move in this direction :.. UNIVERSAL ... .:tostrengthen .tø IP portfolio r?iwith nèwPãtëntsiJ Advertising .................... maxis. V :-"Vringo expeèts 3. Advertising 12/186.592 Click to Call 2. Application Installation coJTtmis-so juflcti:ori Itiobcihr C IPE 0021936 INNOVATE / PROTECT The Innovate/Protect Inc. ("I/P") flagship patent portfolio was acquired from Lycos, Inc. I The patented technology covers the ranking of search results and the placement of search advertising results j I/P Engine (a wholly owned subsidiary of l/P) is in litigation to protect its patents I Markman hearing scheduled for June 4, 2012 I Trial scheduled for October 16, 2012 The VP Team Andrew K. Lang & Donald Kosak Donald E. Stout David L. Cohen I Former CTOs of Lycos I Co-Founder of NTP, Inc. I FormerSenior Litigation Counsel at Nokia I Inventors of I/P Patents and I Licensed NIP's technology to Research in Motion (RIM) for $6i2.5mm I Managed successful world-wide litigation against Apple Mobile Technology A a S a IPE 0021937 C "I am excited at the prospect of developing new mobile applications for distribution across Vringo's platform!' - Andrew K. Lang Vringo INNOVATE/ PROTECT Litigation Experience Licensing Expertise Foundational IP Portfolio IP Portfolio of 20+ Patents/Applications Acquisition Pipeline Listed on NYSE AMEX Innovative Mobile Social Platform Mobile Products and Distribution Creative Technology Leadership Andrew K. Lang & Don Kosak Led by Josh Wolff & Andrew Perlman Former Cbs of Lycos Established carrier partnerships Inventors of I/P patents Multi-product portfolio Proven track record of innovation Cross-hardware handset support Sold WiseWire to Lycos I- S S IPE 0021938 Andrew Penman Chief Executive Officer & Director I Former Head of Digital, Classic Media I Former VP of Global Digital Business Development, EMI Music I George Washington University, B.A. Andrew K. Lang Chief Technology Officer, President & Director I Former CEO, Lightspace Former CTO, Lycos I Duke University, B.S. (4); Carnegie Mellon University, MS. Alexander R. Bergen Chief Operating Officer, Secretary & Director Former VP, Hudson Bay Capital I Former Aide, The White House I George Washington University, B.A. Special Counsel I Former Senior Litigation Counsel, Nokia I David L. Cohen Former Attorney, Skadden; and Lerner David I Johns Hopkins University, B.A., MA.; Cambridge, M.Phil.; University College, London, MA.; Northwestern University, J.D. Clifford Weinstein Chief Communications Officer Former Partner, Maxim Group Fordham University, B.A. Ellen Cohl, CPA, MBA Former VP Finance, Virtual Communities (NASDAQ VCIX) Chief Financial Officer & Treasurer -I I Former Auditor, Deloitte & Touche LLP New York University, B.S.; Baruch College CUNY, MBA a C IRE 0021939 I I I Chairman Seth M. Siegel Director and Chair, Compensation Committee John Engelman Co-Founder, The Beanstalk Group Co-Founder and Partner, Sixpoint Partners Cornell University, B.S.; Cornell Law School, J.D. I Founder& CEO, Classic Media I Former CEO, Broadway Video I Harvard College, B.A.; Harvard Law School, J.D. Director and Chair, Audit Committee H. Van Sinclair I President & CEO, The RU Companies Former Acting President, Charlotte Bobcats I Former Partner-in-Charge of Litigation, Arent Fox PLLC I University of Rochester, B.A., M.B.A. I George Washington University, J.D. Director and Chair, IP Committee Donald E. Stout I Co-founder, NTP Inc. Partner, Antonelli Terry Stout & Kraus LLP Former patent examiner, USPTO I Pennsylvania State University, B.S.; George Washington University, J.D. Andrew Perlman Chief Executive Officer & Director Andrew K. Lang Chief Technology Officer, President & Director Alexander R. Berger Chief Operating Officer, Secretary & Director :.. . . I - i IPE 0021940 Licensing & Acquisition Potential New intellectual property will be aggregated through acquisition, and Internal development under I/P Labs subsidiary. I World class licensing team will seek monetization for new assets. I As Special Counsel, David L. Cohen brings deep experience in strategic patent analysis, acquisition, and monetization. I Further lIcensing of applications and services, building on success with ZTE and Nokia. Licensing & Acquisition Experience I Seth Siegel: As head of Beanstalk, represented AT&T, Harley-Davidson, Microsoft, Apple, JEEP and Ford Motor Company, among many others, in trademark licensing. I John Engelman: As co-founder of Classic Media, acquired over 200 properties and 9,000 episodes of television and film; company acquired for $210 Million. I Andrew Perlman: At EM! Music Group and Classic Media, managed licensing deals with Apple, AT&T, Voutube, Verizon, ZTE, Nokia, Disney. Featured in: THE WALL STREETJMJRNMJ. a p a B C C k The Street FierceMEt$k a IPE 0021941 Innovate/Protect's Flagship Litigation I On September 15, 2011, I/P Engine filed a patent infringement lawsuit against five companies, including Google and AOL, in the Eastern District of Virginia eiol27PsgetOH O0$12 ItAJ Fës Decumeilt I - filed OGIt5II ILEO I The lawsuit alleges infringement of patents WUTEDSThTESDISTflCT COW? £ASItRNDJ$flJOflPVJROJ$J4 - ALEXM4DJ%IA DIVISION purchased from Lycos, Inc. )- I The patented technology covers the ranking of search results and the placement of advertisements AOtINC, - - I AqQ cLEcsrnsm,atcwja1 - ALtZiMD1IA.VlI%!KIA COMPLAINT 1AtSEAflCH & MEDIA. INC. omNrncoMpAN?,lNc and I This technology is Google's "pdmary source of revenue" tThRGBTCORPOMTION, Til11tri,idcd - Pcrtn4nis. SLtAOLunae AOLThGolç I &Oooi&') tGsnnenttAx(co,pcnhionçm3tn &&J[3'S I Is a a a aI I I. IPE 0021942 I/P Engine's Patents, acquired from Lycos, cover the combination of: One example of Google's use of the patented keyword relevance technology I An advertisement's content relevance to a search query Quality Score is a measure of how relevant a keyword is to ad text and to what a user is searching for. The Quality Score for Google Hal Varian, Google's Chief Economist, Explains Search Advertising With Google: 'What is I click-through rates from prior users [includes]: Quality Score?" relative to that advertisement rs4rsttda;es Patint 04 flti*i US m..jfl SI .Os,t?. MI..I.*I i The relevance of the keyword and the matched ad to the search query; I The historical click through rate (CTR) of the keyword and the matched ad on the Google domain It. ci,,i Google's Chief Economist explains the technology n..A fl4 Sh1*iII&!II m Iflt,. it. (IV &I Iw.- .ara http:J/vraw.youtube.confwatcWN=BSd_2gtsFCs E!'k4:: v*aii ..M'! _M*Op;4 W*IOI.. ..ø.hoo ,i.la- --SM 10w#4W 0ota. n1,o 4101 iiiit4 w.1101Ioq,.nr - Varian stated that Google's "primary source of revenue" comes from selling advertisements that are related to the search queries - a IPE. 0021943 I/P Engine is seeking a reasonable royalty from each defendant for: <the full past damages period, which under law, begins up to six years prior to filing the Complaint, September15, 2005, through the conclusion of the trial, plus... the period through the remaining life of the patents in 2016 > Past Damages Period: Six Years Prior to Filing Complaint A reasonable royalty award is typically determined by multiplying: The infringer's total sales of the infringing product (normally the portion attributable to the invention) x a WE 0021944 Search engines generate billions of dollars of revenue because of its search advertising. I/P Engine's damages expert will opine on the portion of that revenue attributable to the use of the invention in the United States. I/P Engine believes that the patented invention is a central part of search advertising revenue. One may include the following considerations in that analysis: J When a user enters a search query on search engines, two searches are run: (i) an organic search to generate organic search results, and (ii) a search of the ad system to generate advertisements. Results to both of these searches are positioned on websites based on their determined "rank." Search engines seek to place high quality advertisements in the best positions because placements are critical to causing users to click on the ads, which generates revenues. High quality advertisement ranking attracts advertisers, pleases end users, and therefore produces search advertising revenues. fi- (-.4-a - S'W4nt2t I Google's search advertising system, for example, filters advertisements by using "Quality Score," which is a combination of an advertisement's content relevance to a search query (e.g., the relevance of the keyword and the matched advertisementto the search query), and click-through rates from prior users relative to that advertisement (e.g., the historical click-through rate of the keyword and matched advertisement). I The complaint alleges that, after adopting the patented techno]ogy, Google's market share and advertising revenue significantly grew and considerably outpaced those of other pay per click advertising providers. a a 0 IPE 002 194 I/Ps Proven Litigation Team Headlines Donald E. Stout Director & Chair, Intellectual Property Committee Result I NIP Rattles BlackBerry Users With 'Unthinkable' Shutdown Threat (Bloomberg, 12/15/2005) Settlement Reached in BlackBerry Patent Case (Associated Press/MSNBC, David L. Cohen Special Counsel $7i5mm 6/14/2011) I Apple to Pay Nokia Big Settlement Plus Royalties in Patent Dispute (The Guardian, Dickstein Shapiro LLP I/P Utigation Counsel licensing settlement 3/3/2006) I Nokia, Apple Settle Patent Litigation (Forbes, $812.5mm settlement plus ongoing royalties* 6/14/2011) I J.&J. Unit Is Told to Pay $482 Million to New Jersey Doctor in Patent Case (The New York Times, 1/28/2011) $900mm+ in jury awards j Boston Scientific Loses $431 Million Verdict on Stent (Bloomberg, 2/12/2008) Featured in: tAmsnbc theguardian Bloomberg Ap Forbes * Estimated, June 15, 2011, Alliance Bernstein analyst Pierre Ferragu IPE 0021946 SEP15: Complaint FEB 15: JULY: OCT 16: Scheduling order issued riled JUN 4: Markman hearing Anticipated Markman ruling Trial aa SEP OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP OCT 2011 2011 2011 2011 2012 2012 2012 2012 2012 2012 2012 2012 2012 2012 NOV14: Answers filed DEC: Document discovery began NOV 4: Joint stipuiationl APR 12: Opening claim construction briefs MAY 3: Reply claim construction briefs JUL 18: Initial expert reports AUG 18: Responsive expert reports SEP: Pre-trial and summary judgment motions SEP 4: End of MAY 17: Joint submission AUG 31: Rebuttal reports fact discovery I We expect the defendants will make several attempts to avoid trial. I The case is on the "Rocket Docket" in the Eastern District of Virginia. I Duringthe Markman process, the court will interpret the patent claims to establish the boundary markings of the claimed technologies. I Each claim comprises a set of limitations: specific terms or phrases that define the technology covered by the claim. I The partieswill applythe claim constructionwhen presentingthe casetothejury. a a a IRE 0021947 i4i v. Microsoft (2003) Internet Browser Technology t i4i sued for infringement on a patent covering a method of editing documents containing markup languages such as XML. i4i accused certain versions of Microsoft Word containing a custom XML editor. I The jury awarded $240,000,000 and the Federal Circuit declined to dismiss i4i's damages expert's opinion and upheld the verdict. Eolas v. Microsoft (2009) Electronic Document Manipulation Technology Eolas sued for infringement on a patent covering technology for the creation of a browser system allowing for the embedding of small interactive programs such as plug-ins, applets or ActiveZ controls, into online documents. I Thejury award Eolas $521,000,000 and Microsoft, unable to get the Federal Circuit to overturn the judgment, later settled with Eolas for an undisclosed amount. e A a., S I' S S S a aS S a t. IPE 0021948 A S 5- - -- NYSE AMEX: VHC - A - Soare Patents S - S -- - - - $24.67 813,742 - $1.25b 4G/LTE netX OTC BB: AUGT Mobile Patents $2.09 18±,846 $197mm Nasdaq: C!GX Tobacco Related Patents $4.00 2,311,689 $525mm NYSE AMEX: VRNG Search and Advertising Patents $1.65 1,278,659 $86mm* 1+ TECHNOLOGIES AUGME S $:tt.5cI \/ringo Based on the number of shares of Common Stock issuable upon closing of the Merger. II j!. IRE 0021949 Investors Media Website Cliff Weinstein Nlicheline Tang/Mark Semer www.VringolP.com Vringo, Inc. Kekst and Company (646) 794-4226 (212) 5214800 cliff@vringo.com mitheline-tang@kekst.com mark-semer@kekst.com Caroline L. Plan The Hodges Partnership (804) 788-1414 (o) (804) 317-9061 (m) cplatt@hodgespart.com www.VringolPcom. S C S IPE 0021950

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