I/P Engine, Inc. v. AOL, Inc. et al
Filing
328
Memorandum in Support re 327 MOTION to Exclude (Preclude) Dr. Ophir Frieder From Testifying Regarding Untimely Opinions that were Not Disclosed in his Original Expert Report and Opinions that he Now Concedes are Incorrect MOTION to Exclude (Preclude) Dr. Ophir Frieder From Testifying Regarding Untimely Opinions that were Not Disclosed in his Original Expert Report and Opinions that he Now Concedes are Incorrect (Public Version) filed by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Noona, Stephen)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA (NORFOLK DIVISION)
I/P ENGINE, INC.
Plaintiff,
Civil Action No. 2:11-cv-512
V.
AOL, INC., et al.,
Defendants.
DEFENDANTS' MEMORANDUM IN SUPPORT OF THEIR MOTION TO PRECLUDE
DR. OPHIR FRIEDER FROM TESTIFYING REGARDING UNTIMELY OPINIONS
THAT WERE NOT DISCLOSED IN HIS ORIGINAL EXPERT REPORT AND
OPINIONS THAT HE NOW CONCEDES ARE INCORRECT
01980.51928/4958542.4
TABLE OF CONTENTS
Page
I.
INTRODUCTION
1
II.
DR. FRIEDER SHOULD BE PRECLUDED FROM RAISING OPINIONS NOT
DISCLOSED IN HIS ORIGINAL REPORT
3
A.
Dr. Frieder's Untimely "Updated" Report Should Be Stricken
3
1.
3
2.
There was no excuse for Dr. Frieder's delay
5
Dr. Frieder could have supplemented before the deadline
for Dr. Ungar's Rebuttal Report, but opted not to do so
5
(b)
Dr. Frieder's vacation is no excuse
6
(c)
Plaintiff did not notice Gary Holt's deposition until two
weeks after Plaintiff served Dr. Frieder's Original Report
7
(a)
3.
B.
Dr. Frieder's delayed disclosure is highly prejudicial to Defendants
Dr. Frieder Should Be Precluded From Testifying About New Opinions
First Disclosed During His September 6, 2012 Deposition
Ill. DR. FRIEDER SHOULD BE PRECLUDED FROM TESTIFYING ABOUT
ANY INCORRECT OR UNTIMELY-DISCLOSED THEORY OF
INFRINGEMENT REGARDING FEEDBACK
8
9
11
11
Dr. Frieder Should Be Precluded From Offering Any New Opinion
Regarding The Collaborative Feedback Limitation
12
Dr. Frieder's opinion changed three times in 48 hours
12
2.
B.
Dr. Frieder Admits That His Infringement Theory Based On C IR Is
Incorrect
1.
A.
Dr. Frieder's failure to clearly identify any theory of infringement
is extremely prejudicial
13
IV. CONCLUSION
0198031928149585424
14
I.
INTRODUCTION
Defendants AOL Inc., Google Inc., IAC Search & Media, Inc., Gannett Co., Inc., and
Target Corporation (collectively, "Defendants") respectfully request that the Court strike all
opinions that were not disclosed in the original Expert Report of Ophir Frieder on Infringement
of U.S. Patent Nos. 6,314,420 and 6,775,664, served on July 25, 2012 (the "Original Report")
(D.N. 240-4). 1 These new opinions include (1) opinions disclosed for the first time in the
Updated Expert Report of Ophir Frieder on Infringement of U.S. Patent Nos. 6,314,420 and
6,775,664, served on September 4 (the "Updated Report") (D.N. 240-6), and (2) opinions that
Dr. Frieder articulated for the first time during his deposition on September 6, 2012. Defendants
also respectfully request that the Court preclude Dr. Frieder from testifying at trial about (1) his
opinion that the accused Google systems meet the collaborative "feedback" element of the
asserted claims because they allegedly calculate the historical clickthrough rate (CTR) of an
advertisement in serving ads — an opinion that Dr. Frieder now admits is wrong, and (2) any
opinion regarding alleged infringement of this element that Dr. Frieder failed to disclose in his
Original Report.
Plaintiff served Dr. Frieder's Original Report on July 25, 2012. Defendants served their
rebuttal report regarding non-infringement on August 30. The following week, at 11 p.m. EDT
on September 4, less than 36 hours before Dr. Frieder's deposition, Plaintiff served an untimely
and unauthorized "Updated" Expert Report for Dr. Frieder. Dr. Frieder's Updated Report
identifies, for the first time, aspects of the accused products that supposedly meet the "contentbased" filtering limitation of the asserted claims. The basis for Dr. Frieder's new opinion is
information that he had reviewed at least as of July 13, nearly two weeks before his Original
1 In an effort to reduce the volume of exhibits and ease the burden on the Court, the citations
in this motion and Defendants' other pre-trial motions refer to exhibits attached to previously
01980.51928/4958542.4
Report was served on July 25. Plaintiff has no excuse for failing to include this information in
Dr. Frieder's Original Report. More than that, Dr. Frieder did not attempt to articulate in his
Updated Report how these previously unidentified aspects of the accused systems allegedly
satisfy the limitations of the asserted claims, but instead, attempted to explain his new
infringement theories for the first time at his deposition. Dr. Frieder's late-produced disclosure
of his reworked opinions falls far short of his obligations under Fed. R. Civ. P. 26, and therefore,
he should be precluded from testifying about them at trial.
Additionally, Dr. Frieder should not be permitted to testify regarding any theories of
infringement for the collaborative "feedback" limitation of the asserted claims that were not
included in his Original Report or that he subsequently disavowed during his deposition. In his
Opening Report, Dr. Frieder concluded that the accused Google systems infringe because "CTR
is collaborative feedback data."
Dr. Frieder should be precluded from testifying about this
theory of infringement that he has now admitted is inaccurate and unfounded.
Likewise, Dr. Frieder should not be permitted to testify regarding any new theories of
infringement with respect to the collaborative "feedback" limitation that were never disclosed in
any expert report. At his deposition, Dr. Frieder attempted to introduce two new (and mutually
inconsistent) theories about how collaborative feedback data is allegedly used in the accused
systems. Indeed, over the course of just a single 48 hour period, Dr. Frieder adopted three
different positions regarding collaborative feedback. Dr. Frieder's continuously changing
contentions on infringement of this limitation are highly prejudicial to Defendants. At this point,
it is impossible to predict what theory Dr. Frieder will testify about at trial, or whether he will
filed declarations to the extent possible.
01980.51928/4958542.4
2
rely on yet another, currently undisclosed theory instead. Moreover, Dr. Frieder's ever-evolving
theories merely confmn that his opinions regarding the collaborative feedback limitation are
confusing and inherently unreliable, and will do nothing to assist the jmy in reaching a verdict.
Accordingly, Defendants respectfully request that the Court strike the theories first
disclosed in Dr. Frieder's September 4, 2012 Updated Report and September 6, 2012 deposition,
and preclude Dr. Frieder from testifying at trial regarding these opinions.
IL DR. FRIEDER SHOULD BE PRECLUDED FROM RAISING OPINIONS NOT
DISCLOSED IN HIS ORIGINAL REPORT
A.
Dr. Frieder's Untimely "Updated" Report Should Be Stricken
2
Plaintiffs first request in this case for the production of any source code was on June 27.
(Ghaussy Dec., Ex. B.) On July 10, Google promptly notified Plaintiff that the source code
would be available for review beginning the next day, on July 11. (Id., Ex. A.) Plaintiff waited
two days to respond, and on the night of July 12, requested access to the source code the
following morning, despite the fact that the Protective Order (agreed to by the parties in this
case) required Plaintiff to give notice of its intent to inspect the source code at least three
business days in advance, (D.N. 85, 6.) As a courtesy to Plaintiff, Defendants voluntarily made
the source code available the next morning, July 13. (Ghaussy Dec., Ex. A.)
01980.51928/4958542.4
3
See Lindner v. Meadow Gold Dairies, Inc., 249 F.R.D. 625, 639 (D. Haw. 2008)
("Although Fed.R.Civ.P. 26(e) requires a party to 'supplement or correct' disclosure upon
information later acquired, that provision does not give license to sandbag one's opponent with
claims and issues which should have been included in the expert witness' [initial] report.").
01980.51928/4958542.4
4
2.
There was no excuse for Dr. Frieder's delay
At his deposition, Dr. Frieder attempted to justify his late supplementation with several
excuses. Each is without merit.
(a)
Dr. Frieder could have supplemented before the deadline for
Dr. Ungar's Rebuttal Report, but opted not to do so
(Ghaussy Dec., Ex. G, 117:18-118:9.)
But, as an initial matter, it was Plaintiffs delay that caused Mr. Furrow's deposition to be
scheduled after Dr. Rieder's Original Report had been served. 5 Plaintiff did not serve a
deposition notice for Mr. Furrow until July 9, 2012 — less than 3 weeks before Dr. Frieder's
Original Report was due. (Id., Ex. C.) And when Plaintiff finally served a notice, it requested
4
During his deposition, Dr. Frieder suggested that there should be no issue with his
supplemental opinions because he had previously cited to the source code. (Ghauss Dec., Ex. G
210:24-211:4.
0198051928/4958542.4
5
that Mr. Furrow's deposition take place a week after the submission of Dr. Frieder's Original
Report. (Id.) In other words, Plaintiff never even asked to take Mr. Furrow's deposition before
Dr. Frieder's Original Report was due.
Anticipating that Plaintiff would use Mr. Furrow's deposition as an inappropriate basis
for providing a late supplementation to Dr. Frieder's Original Report, Defendants promptly
offered a date (July 16, 2012) for Mr. Furrow's deposition that was before the due date for Dr.
Frieder's Original Report. (Ghaussy Dec., Ex. D.) In doing so, Google specifically told Plaintiff
that it would object to a supplementation based on Mr. Furrow's deposition. (Id.) Plaintiff,
however, rejected the opportunity to take Mr. Furrow's deposition prior to the due date for Dr.
Frieder's Original Report, and again asked that he be made available after Dr. Frieder's Original
Report was due. (Id.)
Even after taking Mr. Furrow's deposition, Plaintiffs have no excuse for waiting over a
month to supplement Dr. Frieder's Original Report. Indeed, Dr. Frieder attended Mr. Furrow's
deposition and heard firsthand the testimony on which he now relies. 02 Micro Int? Ltd. v.
Monolithic Power Sys., Inc., 467 F.3d 1355, 1368 ("02 Micro failed to show diligence in
submitting the expert reports, and the court plainly had the authority to exclude the untimely
reports. Federal Rule of Civil Procedure 37(c)(1) authorizes the exclusion of evidence that was
not disclosed as required by Federal Rule of Civil Procedure 26(a).").
(b)
Dr. Frieder's vacation is no excuse
Another excuse Dr. Frieder gave for his late supplementation is that he went on vacation
shortly after Mr. Furrow's deposition. (See id., Ex. G, 137:20-24 ("I was on vacation. I was a —
hiking in the mountains. I was hiking in the waterfalls. I was on the coast. I was not dealing
with anything other than recovering for the start of this — the new year for school.").) First, there
that Dr. Frieder reviewed on July 13, 2012.
01980.51928/4958542.4
6
is no reason why Dr. Frieder could not have prepared his Updated Report before he left. Indeed,
at his deposition, Dr. Frieder testified it only took one day to draft his Updated Report. 6 (Id.
141:9-142:3.) Defendants should not be prejudiced now, merely because Dr. Frieder chose not
to supplement his report before or during his vacation. This is particularly so, given the overall
schedule in this case with short deadlines for all aspects of discovery and trial preparation.
Even if his vacation excuses some delay, it cannot excuse the further delay after Dr.
Frieder got back. After returning from vacation on August 22, Dr. Frieder still had one week to
prepare and serve a supplemental report before Dr. Ungar's Rebuttal Report was due. (Id.
139:23-140:3.) But Dr. Frieder did not consider supplementation particularly important.
Instead, he focused on other things after returning from his vacation, and felt no urgency or need
to supplement his Original Report before Dr. Ungar served his Rebuttal Report. (Id. 140:5-14;
217:11-12.) Ultimately, when Dr. Frieder did supplement, it took him only one day. Thus, there
is absolutely no reason why Dr. Frieder could not have served his Updated Report prior to the
deadline for Dr. Ungar's Rebuttal Report.
(c)
Plaintiff did not notice Gary Holt's deposition until two weeks
after Plaintiff served Dr. Frieder's Original Report
Dr. Frieder also contends that he chose not to supplement his report right after Mr.
Furrow's deposition because he did not want to have to supplement his opinions more than once,
and he knew there would be depositions of other witnesses, such as Gary Holt. But Dr. Frieder's
preferences in this regard does not excuse his failure to comply with the requirements of Fed. R.
Civ. P. 26 and timely supplement his opinions.
6
During his vacation, Dr. Frieder apparently had access to e-mail. But he chose not to check
01980.51928/4958542.4
7
But Plaintiff did not seek Mr.
Holt's deposition until August 8, 2012 — two weeks after Dr. Frieder submitted his Original
Report. (Ghaussy Dec., Ex. E.) In any event, Mr. Holt's deposition took place on August 23,
2012 — six days before Dr. Ungar's Rebuttal Report was due. 7
3.
Dr. Frieder's delayed disclosure is highly prejudicial to Defendants
Dr. Frieder's untimely, "Updated" Report includes completely new allegations of
infringement. Dr. Frieder's Updated Report was served less than 36 hours before his deposition.
Moreover, Defendants did not have time to examine Dr. Frieder's citation to multiple
pages of testimony from Messrs. Furrow, Holt and Cook, particularly given Dr. Frieder's failure
to articulate how those citations added to his opinions or supported his newly-disclosed
infringement theories. (See, e.g., D.N. 240-8, 2, 3, 4, 7, 8, 9; see e.g., id. at 14 (including block
citations to pages 231-241 and 247-254 from the Holt Deposition and pages 165-201 of the
Furrow deposition).)
Further, because Dr. Frieder did not supplement his opinions until after Dr. Ungar had
submitted his Rebuttal Report, Dr. Ungar was not able to address these new infringement
contentions.
it in connection with this case. (Id. 138:20-139:1.)
7 In his Updated Report, Dr. Frieder also cites to the de osition of Derek Leslie-Cook, a
Google en ineer in Ads Quality.
(See D.N. 240-7 at 7, 23, 35, 45.) In addition, Mr. Cook's
deposition took place on August 17, 2012. After that, Dr. Frieder had almost 2 weeks to
supplement his report before Dr. Ungar served his Rebuttal Report.
01980.51928/4958542.4
8
Finally, Dr. Ungar would have been able to consider additional
non-inftinging alternatives related to Dr. Frieder's belatedly-disclosed infringement positions. 8
Dr. Ugone, Defendants' damages expert, also would have taken this infringement theory
into account when evaluating potential damages
As the date of first infringement affects both when damages
begins to accrue and the hypothetical negotiation date, this information is relevant to Dr. Ugone's
opinions on damages.
B.
Dr. Frieder Should Be Precluded From Testifying About New Opinions First
Disclosed During His September 6, 2012 Deposition
(D.N. 282.) If, however, Dr. Frieder had disclosed his opinions when required to do so, this
issue would have never arisen.
01980.5192814958592.4
9
But Dr. Frieder's attempt to provide the missing explanation at his deposition does not satisfy the
requirements for expert reports under Rule 26.
Accordingly, Dr. Frieder should be precluded from offering any
after-the-fact explanation at trial. See Fed. R. Civ. P. 37(c). Indeed, the Federal Rules are
designed to prevent situations like this where experts hide-the-ball with respect to their
contentions, as Dr. Frieder has done here. See Sharpe v. US., 230 F.R.D. 452, 459 (RD. Va.
2005) ("[A]n expert report must be detailed and complete so that opposing counsel is not forced
to depose an expert in order to avoid ambush at trial and sufficiently complete so as to shorten or
decrease the need for expert depositions and conserve resources.") (citations omitted); Wright v.
Commonwealth Primaiy Care, Inc., 3:10-CV-34, 2010 WL 4623998, at *2 (E.D. Va. Nov. 2,
2010) ("An expert report satisfies Rule 26(a)(2)(B) if it is sufficiently complete, detailed and in
compliance with the Rules so that surprise is eliminated, unnecessary depositions are avoided,
and costs are reduced.") (internal citations omitted).
0198031928/49585424
10
III. DR. FRIEDER SHOULD BE PRECLUDED FROM TESTIFYING ABOUT ANY
INCORRECT OR UNTIMELY-DISCLOSED THEORY OF INFRINGEMENT
REGARDING FEEDBACK
A.
Dr. Frieder Admits That His Infringement Theory Based On CTR Is
Incorrect
Throughout this case, Plaintiff has asserted that the feedback information limitations in
the asserted claims has been met because AdWords allegedly uses the clickthrough rate (CTR) of
an advertisement in determining which ads to serve. Plaintiff has stated since the beginning of
the case that CTR is feedback. (D.N. 240-20, 6, 9, 12, 5; D.N. 240-21, 8, 14, 19, 24; D.N. 24022, 13, 25, 34-35, 43.) Dr. Frieder repeats this contention, nearly verbatim, in his Original
Report, as to each asserted claim. (D.N. 240-5, 10, 25, 34, 43.) And Dr. Frieder repeats this
contention in his untimely Updated Report as well. (D.N. 240-6, 12, 27, 37, 47.)
.9
(See D.N. 238
Section I.B.) Accordingly, Dr. Frieder testified that he is no longer asserting that the CTR is the
9
To support his prior position that CTR was collaborative feedback, Dr. Frieder relied
heavily on marketing documents. It is inappropriate, however, for Dr. Frieder to base his expert
opinion on technical issues on these non-authoritative documents. Whirlpool Corp. v. LG Elecs.,
Inc., Case No. 1:04-cv-100, 2006 WL 2035215, at *8 (W.D. Mich. July 18, 2006) ("[I]t is the
[product], not the marketing materials, that are the subject of the infringement accusation. The
marketing materials cannot override the actual operation of the [product].") These marketing
documents are designed for public consumption. See Fed. R. Evid. 702. As with most
marketing documents, these documents are not a complete description of how the accused
systems actually work, nor are they a "true mathematical formula as it would relate to how the ad
system operates." (Ghaussy Dec., Ex. H, 102:9-10.) Instead, Dr. Frieder should base his
opinions on the technical documents and source code which actually describe how the accused
systems function. Marketing documents, by contrast, are simply "meant to give advertisers [] a
high-level feel for how the system operates." (Id. 102:11-12.) Given Dr. Frieder's admission
that his earlier opinion is incorrect, this theory should be stricken, and Plaintiff should be
precluded from offering it at trial.
01980.51928/4958542.4
11
[collaborative] feedback data required by the asserted claims: "Q. But for purposes of AdWords,
you're not saying that the — the CTR is collaborative data? A. No. I" (sic) not saying the CTR."
(Id. 222:12-15.) Now that Dr. Frieder has rejected both the factual basis and the conclusion he
reached regarding what aspects of the accused products meet the "[collaborative] feedback"
limitations in the asserted claims, he should not be permitted testify about this opinion at trial.
Fed. R. Evid. 702(b). Devito v. SmithKline Beecham Corp., 2004 WL 3691343, *4 (N.D.N.Y.
Nov. 29, 2004) (precluding expert opinions that the expert had "expressly disavowed in his
deposition.")
B.
Dr. Frieder Should Be Precluded From Offering Any New Opinion
Regarding The Collaborative Feedback Limitation
1.
Dr. Frieder's opinion changed three times in 48 hours
In his Updated Report served 36 hours before the deposition, Dr. Frieder asserted that
"[t]he CTR is collaborative feedback data." (D.N. 240-7, 12, 27, 37, 47.) At his deposition, Dr.
Frieder disavowed that opinion. Instead, he testified that "[t]he clicks are the collaborative
feedback data." (Ghaussy Dec., Ex. G, 34:14-35:5; 92:20-21 ("The feedback data that we talked
about was clicks."); 110:18 ("The collaborative feedback data are the clicks.")) Then, after
lunch on the same day, Dr. Frieder's opinion changed yet again.
01980.51928/4958542.4
12
10 Dr. Frieder had never
articulated either of these theories until his deposition.
Altogether, in less than 48 hours, Dr. Frieder's theory regarding how the accused products
include collaborative feedback changed at least three times. At 11 p.m. on September 4, Dr.
Frieder contended that the C1R was the collaborative feedback. In the morning of September 6,
Dr. Frieder said that the feedback data was the clicks.
Despite ample opportunities, Dr. Frieder has been
unable to identify a coherent theory of infringement and stick with it. In fact, Dr. Frieder has
flatly rejected the only theory articulated in his opening expert report. These ongoing flip flops
in his opinions do not even come close to satisfying the reliability requirements of Daubert v.
Merrell Dow Pharms., 509 U.S. 579 (1993). See In re Trasylol Prods. Liability Litig., 709
F.Supp.2d 1323, 1339 S.D. Fla. 2010) (excluding expert's opinions under Dauber! where it was
"apparent that her opinions were often inconsistent.")
2.
Dr. Frieder's failure to clearly identify any theory of infringement is
extremely prejudicial
Dr. Frieder's failure to articulate even one consistent theory for where the feedback
limitations are found in the accused systems has been extremely prejudicial to Defendants. For
example, based on his original theory that the CTR is the feedback data, Defendants prepared
and filed a motion for summary judgment. If Defendants had been aware of Dr. Frieder's new
theory(ies), Defendants' motion would have been different. In addition, Dr. Ungar prepared the
opinions in his Rebuttal Report based on the same assumptions. Because Dr. Frieder did not
10
0198051928/4958542.4
13
articulate any of his new opinions until at least September 6, Dr. Ungar has not had an
opportunity to respond and provide his opinion
Furthermore, because Dr. Frieder disclosed his new theory that the clicks are the
"feedback data" only on the morning of his deposition, Defendants necessarily used valuable
deposition time to explore Dr. Frieder's new contentions. Defendants asked Dr. Frieder about
his original CTR collaborative feedback theory — a theory that Dr. Frieder ultimately
disavowed. Then, after Dr. Frieder finally disclosed his new opinions, Defendants necessarily
followed-up with questions regarding the basis and substance of those opinions. (See, e.g.,
Ghaussy Dec., Ex. G, 119:13-15; 122:10-13; 122:24-5; 125:16-19; 127:22-128:1; 128:8-11.)
Thus, because Dr. Frieder failed to disclose his opinions as he is required to do under Rule 26,
Defendants were unfairly prejudiced at his deposition by having to use their time attempting to
chase down his actual contentions. Even now, it is unclear what Dr. Frieder's testimony will
ultimately be, which is exactly the type of situation Rule 26 disclosures were designed to
prevent.
IV. CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court (1) strike all
opinions that were not included in Dr. Frieder's Original Report, (2) preclude Dr. Frieder from
testifying about any late-disclosed theories in his Updated Report or at his deposition, and (3)
preclude Dr. Frieder from testifying about any opinions that he now concedes are incorrect.
01980.51928/4958542.4
14
DATED: September 21, 2012
/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANDLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624.3000
Facsimile: (757) 624.3169
senoona@kaufcan.com
David Bilsker
David A. Perlson
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: (415) 875-6600
Facsimile: (415) 875-6700
davidbilsker@quinnemanuel.com
davidperlson@quinnemanuel.com
Counsel for Google Inc., Target Corporation,
IAC Search & Media, Inc., and Gannett Co., Inc.
By: /s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANDLES, P.C.
150 W. Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624-3000
Facsimile: (757) 624-3169
Robert L. Burns
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
Telephone: (571) 203-2700
Facsimile: (202) 408-4400
01980.51928/4958542.4
15
Cortney S. Alexander
FINNEGAN, HENDERSON, FARABOW, GARRETT &
DUNNER, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
Telephone: (404) 653-6400
Facsimile: (415) 653-6444
Counsel for Defendant AOL Inc.
01980.51928/4958542.4
16
CERTIFICATE OF SERVICE
I hereby certify that on September 21, 2012, I will electronically file the foregoing with
the Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF)
to the following:
Jeffrey K. Sherwood
Kenneth W. Brothers
DICKSTEIN SHAPIRO LLP
1825 Eye Street NW
Washington, DC 20006
Telephone: (202) 420-2200
Facsimile: (202) 420-2201
sherwoodj@dicksteinshapiro.com
brothersk@dicksteinshapiro.com
Donald C. Schultz
W. Ryan Snow
Steven Stancliff
CRENSHAW, WARE & MARTIN, P.L.C.
150 West Main Street, Suite 1500
Norfolk, VA 23510
Telephone: (757) 623-3000
Facsimile: (757) 623-5735
dschultz@cwm-law.cm
wrsnow@cwm-law.com
sstancliff@cwm-law.com
Counsel for Plaintiff I/P Engine, Inc.
/s/ Stephen E. Noona
Stephen E. Noona
Virginia State Bar No. 25367
KAUFMAN & CANOLES, P.C.
150 West Main Street, Suite 2100
Norfolk, VA 23510
Telephone: (757) 624.3000
Facsimile: (757) 624.3169
senoona@kaufcan.com
01980.51928/4958542.4
17
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