I/P Engine, Inc. v. AOL, Inc. et al
Filing
608
Response to 115 MOTION to Seal I/P Engine, Inc.'s Motion to Seal Exhibits 15, 16, 17, 18, and 21 of IP Engine's Memorandum in Support of Its Motion to Compel Defendant Google, Inc.'s Custodial Document Production, 125 MOTION to Seal Motion to Seal I/P Engine's Opposition to Google and IAC's Motion to Compel Plaintiff to Supplement its Infringement Contentions Along with Exhibits 11, 12, 14, 15, 18, 21, and 22 in Support filed by I/P Engine, Inc.. (Attachments: # 1 Exhibit Exhibit 15 (Lesser Redacted), # 2 Exhibit Exhibit 16 (Lesser Redacted), # 3 Exhibit Exhibit 17 (Lesser Redacted), # 4 Exhibit Exhibit 18 (Unredacted, Public Form), # 5 Exhibit Exhibit 21 (Lesser Redacted), # 6 Exhibit ECF 125 (Lesser Redacted), # 7 Exhibit Exhibit 11 (Lesser Redacted), # 8 Exhibit Exhibit 12 (Lesser Redacted), # 9 Exhibit Exhibit 15 (Lesser Redacted), # 10 Exhibit Exhibit 22 (Lesser Redacted))(Schultz, Donald)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVI SI ON
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I/P ENGINE, NC.,
Plaintiff,
V.
AOL, INC. et al.,
Defendants.
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Civ. Action No. 2:11-cv-512
FILED UNDER SEAL
OPPOSITION TO GOOGLE AND IAC'S MOTION TO COMPEL
PLAINTIFF TO SUPPLEMENT ITS INFRINGEMENT CONTENTIONS
I. INTRODUCTION AND SUMMARY
Google Inc. and IAC Search & Media, Inc.'s (collectively "Defendants") Motion to
Compel I/P Engine to provide supplemental infringement contentions is without merit. FP
Engine has voluntarily provided clear and comprehensive infringement contentions. I/P
Engine's infringement contentions served on February 17, 2012 represent its current
contentions. Those contentions are impressively detailed, especially considering that Defendants
have yet to complete their production of responsive documents. Aside from their initial
production on which the current contentions are based, Defendants have produced few
documents. Google, for example, has been continually dragging its feet regarding long-promised
production of custodial documents that should provide further evidence that I/P Engine can use
to supplement the current contentions. Google's interminable delays have caused I/P Engine to
file a motion to compel. UP Engine has committed to supplement on a timely basis its
contentions as Defendants produce additional documents.
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UP Engine's current contentions are more than adequate to provide Defendants notice as
to I/P Engine's allegations regarding where each claim limitation is found in each accused
system. Defendants' assertion that they "do not understand why their products allegedly infringe
the patents-in-suit" is specious; I/P Engine has provided clear explanations, amply supported by
citations to Defendant's own documents.
Defendants' motion primarily turns on their disagreement with the merits of I/P Engine's
contentions, or on Defendants' disputed construction of certain claim terms, which are
concurrently being briefed and are scheduled for hearing on June 4, 2012. While Defendants
may not agree with I/P Engine's contentions, or may dispute I/P Engine's construction of the
relevant claim terms, neither of those arguments provide a basis for compelling I/P Engine to
supplement its fulsome contentions.
Tellingly, although Defendants assert that they are "entitled to know how each of their
products allegedly meets each of the limitations of the asserted claims so that they can defend
themselves," they have failed to meet that same standard. Prior to filing their motion,
Defendants repeatedly refused to explain the basis for their non-infringement contentions.
Likewise, prior to the filing of their motion, Defendants' interrogatory responses did not describe
any deficiencies in I/P Engine's infringement contentions. Their motion should be denied.
II. FACTUAL BACKGROUND
A.
I/P Engine's Initial Infringement Contentions
Though not required by local rules or court order, I/P Engine voluntarily provided
Defendants with preliminary infringement contentions before Defendants responded to the
Complaint, and before receiving a single document production. See, e.g., Exs. 1-4 (I/P Engine's
Preliminary Disclosure of Asserted Claims and Pre-Discovery Infringement Contentions as to
Google AdWords, Google Search, IAC's Ask.com Sponsored Listings, and IAC's Use of Google
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AdWords). 1 VP Engine's preliminary contentions were narrative in format, identified all of the
asserted claims, and set forth in detail, based on publicly-available documents, how each of
Defendants' accused systems satisfied each and every limitation of each asserted claim. Id. FP
Engine's preliminary contentions incorporated citations to hundreds of pages of documents
created by Defendants, and specifically quoted from those documents to show, in Defendants'
own words, how each of the Defendants' accused systems infringed VP Engine's patents. Id.
Pursuant to the parties' stipulation, beginning on December 7, 2011, Defendants
produced certain technical documents regarding their respective accused systems. That
production included wholly irrelevant documents relating to Google Earth and other non-accused
projects. I/P Engine's counsel immediately started reviewing those over 300,000 documents,
having to sift out a great amount of irrelevant information. While this review was ongoing, the
parties agreed that VP Engine would supplement its initial infringement contentions on February
17, 2012, in exchange for Defendants' commitment to disclose their invalidity contentions on
March 3, 2012. Ex. 5. While VP Engine met its commitment (as described below), Defendants
refused to supplement their invalidity contentions as promised. Ex. 6.
Defendants also have avoided disclosing their non-infringement contentions, despite VP
Engine's interrogatories, and representations by Defendants that they would do so. 2 As of the
Those preliminary infringement contentions were provided pursuant to a November 4, 2011
stipulation between the parties, which obligated defendants to produce certain technical
documents in December 2011. See Ex. 7.
I
I/P Engine has served three different interrogatories requesting non-infringement contentions
from Google. See Ex. 8 and Ex. 9 (Interrogatory Nos. 6, 11, and 12). Google initially responded
by providing a list of virtually all of the limitations of the asserted claims, and denying that
Google practiced any aspect of those limitations. See Ex. 10 at 13-16 (Response to Interrogatory
No. 6). After several letters and a meet and confer, Defendants supplemented their response by
citing, pursuant to Rule 33(d), over 1,000 documents that they contended showed noninfringement. Ex. 13 at 18-34 (Supplemental Response to Interrogatory No. 6). I/P Engine has
reviewed every one of those documents, and has failed to locate any evidence that contradicts I/P
2
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date that Defendants filed the instant motion to compel, they had not provided I/P Engine with
any meaningful statement of their non-infringement contentions, in contrast to I/P Engine's two
sets of detailed infringement contentions?
B.
I/P Engine's Supplemental Infringement Contentions
On February 17, 2012, I/P Engine served Defendants with seven claim charts containing
detailed infringement contentions related to Google AdWords and AdSense for Search ("Google
AdWords") for all defendants, citing and quoting Defendants' own proprietary, technical
documents, as well as the public documents previously cited. See, e.g., Exs. 11, 12
(supplemental contentions served on Google and IAC). Those contentions represented (and still
represent) I/P Engine's current infringement contentions, reflecting its first review of
Defendants' initial technical document production and containing additional citations to
documents received through discovery. Every asserted claim limitation is supported with
detailed citations to, and explanations of, supporting evidence distilled from Defendants' own
documents. The supplemental infringement contentions provided further support for — and
confirmation of — I/P Engine's preliminary assertions of infringement.
Engine's Present Infringement Contentions or relates to any non-infringement arguments.
Monterio Decl. ¶ 2-3. The thousand-document list includes random documents related to
unaccused systems, such as a Google Maps polygon drawing program, a flash drive encryption
project, a product called "Duck" meant to accelerate users' web browsing, and numerous empty
design templates. See Ex. 14 (example documents). In short, those "non-infringement
contentions" were useless in assisting FP Engine to supplement its infringement contentions.
3
Only upon the threat of an imminent motion to compel did Defendants begin to explain their
non-infringement positions on March 30, 2012. See Ex. 15.
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111. ARGUMENT
A.
VP Engine's Present Infringement Contentions Reflect Plaintiff's Current
Contentions, are Sufficient, and Will be Supplemented as Discovery
Progresses
1.
The infringement contentions adequately disclose I/P Engine's
current contentions
I/P Engine's February 17th supplemental infringement contentions as to Google
AdWords (Ex. 11), its November 7th preliminary infringement contentions as to Google Search
(Ex. 2), and its November 10th preliminary infringement contention as to IAC's Ask.com
Sponsored Listings are VP Engine's present infringement contentions (Ex. 3)• 4 I/P Engine's
Present Infringement Contentions provide Defendants ample notice of I/P Engine's current
infringement theories.
While infringement contentions are not required in this Court, I/P Engine's present
infringement contentions far exceed the requirements of preliminary infringement contentions
required by other courts. Courts have recognized the need "to distinguish the requirements of
initial infringement contentions from later stages in litigation," noting that "[i]nfringement
contentions need not disclose specific evidence nor do they require a plaintiff to prove its
infringement case[1" Shurtape Technologies LLC v. 3M Co., 2001 WL 4750586, at *2 (W.D.
N.C. Oct. 7, 2011) (citing Fenner Invs., Ltd. v. Hewlett—Packard Co., 2010 WL 786606, at *2
(E.D. Tex. Feb. 26, 2010)). Instead, early contentions such as I/P Engine's contentions merely
need to "provide defendants with notice of infringement beyond the claim language itself." Id.
("infringement contentions serve a notice function and need not be incontrovertible or presented
4
Defendants' Motion is limited to I/P Engine's current infringement contentions as to Google
Adwords and AdSense for Search, Google Search, and IAC's Ask.com Sponsored Listings.
Defendants have not challenged the adequacy of I/P Engine's contentions regarding any other
accused product.
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in excruciating detail") (citations and quotations omitted). Despite Defendants' suggestions to
the contrary, infringement contentions "are not the correct stage to pre-try the case . . by
conducting a highly detailed and rigorous analysis of the preliminary claim infringement
contentions." Id. (quoting STMicroelectronics, Inc. v. Motorola, Inc., 308 F.Supp.2d 754, 756
(E.D. Tex. 2004)).
As set forth in section B, below, 1/P Engine's infringement contentions are more than
adequate to provide notice. Indeed, those contentions set forth an unusually detailed and
rigorous analysis of how the accused systems infringe each element of each asserted claim. The
detail of those contentions is remarkable, in view of the fact that Defendants have been dragging
their feet in producing their documents. 5
2.
I/P Engine has committed to supplement its infringement contentions
as appropriate
VP Engine repeatedly has advised Defendants that it will seasonably supplement its
infringement contentions as discovery progresses. VP Engine made that clear during a meet and
confer on March 13, 2012, and in a letter on March 14, 2012. See Ex. 16. On March 16, 2012,
counsel for I/P Engine sent an email and left a detailed voicemail for Steve Noona, local counsel
for Defendants, explaining that VP Engine's February 17, 2012 infringement contentions were its
current contentions, and that I/P Engine intended to supplement as discovery progressed.
Monterio Decl. 4. Neither Mr. Noona nor any other counsel for Defendants returned that call
or sought to further discuss the issue, instead filing the instant motion on March 27, 2012.
5
Between February 17, 2012 and the date of Defendants' motion, Defendants have not
produced any technical documents that change VP Engine's present infringement contentions or
current infringement theories, or articulated any reasons why — including non-infringement
arguments — I/P Engine's contentions or theories are misplaced or wrong (as described above).
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I/P Engine continues to review documents that Defendants slowly are producing, and are
seeking additional documentation from Defendants so that I/P Engine can further bolster its
infringement case. Defendants nevertheless continue to drag their feet in their ongoing
document production. I/P Engine has received very few technical documents apart from
Google's repository document production. For documents specifically related to this case,
Google has taken over five months to produce custodial documents responsive to I/P Engine's
November 7th document requests. After four months and numerous letters, and multiple meet
and confers, and eventual threats of a motion to compel by VP Engine, the parties finally have
agreed to custodians and terms for an initial search. As of the date of this brief, Google promised
to produce its custodial documents by June 15, 2012 — which is the subject of a separate motion.
Monterio Decl. II 5. Until Google produces those documents, as well as additional documents
tailored to this case, I/P Engine is under no obligation to further supplement its contentions.
As an example, I/P Engine seeks additional documents that further describe the use of
click through rate ("CTR") in its search ranking algorithm. Ex. 17 at 11-12 (Document Request
No. 12).
Upon learning that
perhaps due to
infringement concerns), VP Engine tried to obtain discovery by other means. For example, I/P
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Engine asked Google to confirm or deny that its search engine uses CTR to influence its search
results. Ex. 19. Google has refused to answer, stating that it cannot understand what it means to
"use click-through rates or data to rank/return search results" and that Google is "not able to
confirm" that it never uses historical data. Ex. 20. Nevertheless, I/P Engine's present
infringement contentions explain the basis, as best as it can be gleaned from Defendants'
incomplete production, for Plaintiff s infringement contentions.
FP Engine has faced similar difficulties in understanding the relevant features of IAC's
systems from the presently-produced documents. Although I/P Engine's review of the most
recently produced IAC documents is ongoing, the documents so far do not appear to describe the
relevant aspects. I/P Engine continues to seek additional evidence through discovery, but has no
obligation to update its infringement contentions until such evidence has been produced,
reviewed, and analyzed. 6
UP Engine recently served its Rule 30(b)(6) deposition notices on Defendants. Monterio
Dec1.117. After those depositions, if additional helpful information is provided, I/P Engine
intends to supplement its infringement contentions with any and all obtained evidence.
3.
UP Engine's infringement contentions were served by agreement
This Court does not have local rules that require parties to provide infringement
contentions by a specific date, or requires the contents of such contentions, or restricts a party
from supplementing such contentions after a certain date unless good cause is shown.
Defendants' reliance on precedent from other jurisdictions with such rules, for example the
Northern District of California and the Eastern District of Texas, are inapposite.
VP Engine has also proposed that the case be streamlined by focusing on the Google AdWords
system. Ex. 21. This proposal would lead to the dismissal of Target, Gannett, and IAC. VP
Engine has received no response from Target, Gannett, and IAC, even though they are
represented by the same law firm as Google. Google has refused the stipulation.
6
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VP Engine voluntarily provided its initial infringement contentions, as well as its
supplemental infringement contentions, pursuant to an agreement between the parties, and not
because it was required by any local rule, or court order. But for the parties' agreements,
discovery could not have been served prior to March 9, 2012, and neither I/P Engine's initial
infringement contentions of November 2011, nor the supplemental contentions of February
2012, would have been served. Rule 26(f) Order (D.L 83).
4.
Because VP Engine's infringement contentions were not in response to
interrogatories, there is nothing to compel
Because I/P Engine's infringement contentions were served by agreement, and not served
in response to any interrogatories, there is nothing for this Court to compel. Defendants cannot
seek to compel a response to a discovery request, because I/P Engine's initial and supplemental
infringement contentions were served by agreement, not pursuant to an interrogatory served
under Rule 33. Do Defendants hope to seek a Court Order obligating I/P Engine to comply with
the agreement that I/P Engine serve supplemental infringement contentions on February 17,
2012, in exchange for Defendants serving detailed invalidity contentions on March 3, 2012? If
that is the case, I/P Engine satisfied its obligation when it served its supplemental infringement
contentions on February 17, 2012. It is Defendants who failed to honor their agreement by
failing to serve any supplementation on March 2, as promised. See Ex. 6.7
Defendants do not argue that VP Engine has a supplementation obligation for infringement
contentions served pursuant to the agreement between the parties. To the extent that Defendants
had a right to compel enforcement of an agreement between the parties instead of a formal
discovery request, Defendants waived their opportunity to enforce agreement of the parties as a
result of their failure to supplement their invalidity contentions. See Ex. 6. And even if I/P
Engine's reference to its infringement contentions in an interrogatory response somehow
transformed the contentions into a formal interrogatory response, because Defendants possess FP
Engine's current infringement contentions, there is nothing to supplement.
7
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B.
Defendants' Criticisms Reflect Disagreements on the Merits or Pending
Claim Construction Disputes, not Inadequacies with the Present
Infringement Contentions
1.
I/P Engine has provided complete infringement contentions as to
Google AdWords
UP Engine's present infringement contentions explain, in Google's own words, how
Google AdWords infringes UP Engine's patents, and reflect I/P Engine's present understanding
of Google AdWords. Defendants, through nothing more than conclusory statements and
rhetoric, assert four deficiencies in its motion with respect to I/P Engine's Present Infringement
Contentions as to Google AdWords:
1) UP Engine fails to identify what "collaborative feedback data" is received by
Google AdWords;
2) I/P Engine fails to identify where and how Google AdWords information is
filtered for relevance to the query;
3) UP Engine fails to identify what in Google AdWords involves "scanning a
network"; and
4) UP Engine fails to identify where the "feedback system" and "scanning system"
are found in Google AdWords.
As explained below, none of Defendants' assertions have merit. Each of these features are
plainly disclosed in UP Engine's present infringement contentions. Google's assertions are
instead based upon its disagreement with the facts, or based upon its own claim constructions,
which the Court has not accepted, and which currently is being briefed in advance of the June 4,
2012 hearing.
a.
VP Engine's present infringement contentions identify what
"collaborative feedback data" is received by Google AdWords
Defendants allege that UP Engine "refuses to identify in its infringement contentions
what 'collaborative feedback data' is received" Defendant's Motion (D.I. 105) at 10. This is
incorrect. With respect to the limitation "receiving collaborative feedback data from system
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users relative to informons considered by such users," for example as recited in claim 10 of the
'420 patent, I/P Engine's present infringement contentions state:
Google AdWords includes a system that receives feedback data from system
users, the feedback data being related to the website information returned as
results and considered by users. For example, Google AdWords receives
feedback (in the form of clickthrough data) about information, e.g.,
advertisements, considered by the other users. See 1PE0000064 ("Millions of
users click on AdWords ads every day. Every single one of those clicks — and the
even more numerous impressions associated with them — is analyzed by our filters
(stage 1), which operate in real-time."). Google AdWords uses the "dynamic
variable called 'Quality Score' to evaluate keyword relevance." IPE0000058. In
AdWords, a component of the "Quality Score" is based on an advertisement's
"clickthrough rate (CTR)" Id.; see also IPE0000061-IPE0000062 ( "[Ole
historical clickthrough rate (CTR) of the keyword and the matched ad on Google;
if the ad is appearing on a search network page, its CTR on that search network
partner is also considered" and that "[h]aving . . . a strong CTR on Google . . .
will result in a higher position for your ad."). Google says that, of the three
components of Quality Score, CTR is "the biggest one by far" and that "by
allowing users to vote with their clicks, we have millions of people that are
helping us to decide which ads are best for each search query." IPE0000073.
The CTR is feedback data from system users on advertisements considered by the
users.
Ex. 11 at 8-9.
I/P Engine's contentions are clear: "Google AdWords receives feedback (in the form of
clickthrough data)." Google understood this when it filed this motion, because its belated
response to I/P Engine's non-infringement interrogatories admit that "Plaintiff apparently asserts
that this limitation is met . . . by the use of historical clickthrough rate or CTR in the calculation
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of Quality Score." Ex. 22 at 40, Ex. 23 at 10. There is, in fact, no ambiguity in I/P Engine's
present infringement contentions, and Google's statement that I/P Engine has "refused" to
identify what feature meets the recited "collaborative feedback data" limitation is contradicted by
Defendants' own admission.
b.
FP Engine's present contentions identify where and how
Google AdWords information is filtered for relevance to the
query
Google alleges that I/P Engine's present infringement contentions do not describe what
part of Google's system is involved in "filtering each informon for relevance to the query." The
plain language of the contentions belie this assertion by explaining how Google AdWords meets
the "filtering" element, citing Google's own documents:
Ex. 11 at 9.
I/P Engine thus has detailed how Google's own documents explain that th01111111119
See Ex. 11 at 8, 9, 14-16, 19, 21, 24, 26
1=11.1111111111111111
deed, this filtering based on Quality Score
was referenced in VP Engine's complaint, which stated that "Google's search advertising
systems filter advertisements by using "Quality Score." Complaint (D.I. I) at 9. I/P Engine's
infringement contentions have been clear and consistent from the day that complaint was filed.
FP Engine's citations clearly explain how the filtering is infringed using Google's own
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documents, and Google cannot reasonably claim that it is unaware what part of its own system is
involved with the quoted functionality.
c.
I/P Engine's present infringement contentions identify what in
Google AdWords involves "scanning a network"
I/P Engine's present infringement contentions regarding the "system for scanning a
network" (claim 10 of the '420 patent for example) include five lengthy paragraphs describing
the specific features of Google AdWords involved in the claimed scanning. Ex. 11 at 6-7. For
example, a portion of that response states:
Google uses distributed databases in its systems, and the databases distribute
information across several locations on a network. IPE0000011-IPE0000024; see
also IPE0000026 (showing distributed systems). . . .
Additionally, the system collects information on landing pages of advertisements
on the Internet. IPE0000066.
Ex. 11 at 12
I/P Engine's contentions disclose in detail how the accused features meet the "scanning a
network" limitation. Each statement in the contentions relate to the "scanning a network"
limitation, and includes references to Google's own documents.
d.
I/P Engine's present infringement contentions identify where
the "feedback system" and the "scanning system" are found in
Google AdWords
Google claims that VP Engine has not disclosed a "feedback system" that receives
feedback. A review of I/P Engine's infringement contentions illustrates the shallowness of
Google's complaint:
Google AdWords receives feedback (in the form of clickthrough data) about
information, e.g., advertisements, considered by the other users . . . .
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Ex. 11 at14-15. From this, Google is reasonably apprised as to the elements of its system that I/P
Engine contends receive collaborative feedback.
l/P Engine's present infringement contentions similarly include a thorough description of
the "scanning system" of Google AdWords that Defendants claim is not identified. As described
above, I/P Engine's contentions include a lengthy description of the components alleged to meet
the scanning system limitation of the claims. For example:
Google uses distributed databases in its systems, and the databases distribute
information across several locations on a network. IPE0000011-IPE0000024; see
also IPE0000026 (showing distributed systems). . . .
Additionally, the system collects information on landing pages of advertisements
on the Internet. IPE0000066.
Ex. 11 at 27-28.
VP Engine's detailed description identifies the "scanning system" that IIP Engine is
accusing of infringement. The documents cited in this description detail the corresponding
structures involved in the scanning of the network to the extent they are documented by Google
in produced documents. Accordingly, Google is reasonably apprised of PP Engine's contention
with respect to this claim element.
2.
VP Engine has also provided sufficient infringement contentions as to
Google Search and IAC's Ask.com Sponsored Listings
Defendants' arguments as to the Google Search and Ask.com Sponsored Listings
contentions are likewise without merit. Despite stating that VP Engine's infringement
contentions are "noticeably incomplete," Defendants have only identified a single alleged
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deficiency. Defendants' sole argument contends that liP Engine's Present Infringement
Contentions do not explain how the products meet "collaborative filtering" which it refers to as
"an element of each of the independent claim to the '420 Patent." In fact, this phrase
("collaborative filtering") does not appear in any of the asserted claims (or in any other claim of
either patent-in-suit). FP Engine has explained to Google that it does not understand to which
claim language Defendants are referencing. Ex. 24. Because I/P Engine's infringement
contentions are tied to the actual language of the claims, and explain how each recited element is
infringed by Defendants' accused systems, Defendants' assertion that the contentions do not
speak to a non-existent claim limitation makes no sense.
It appears that Defendants have some special definition of "collaborative filtering" that
they would like to see make its way into the claims. To the extent this is a claim construction
issue, it will be addressed by the Court in its Markman ruling. Tellingly, when I/P Engine asked
Defendants to explain what they meant by "collaborative filtering," or to update their noninfringement contentions to explain this position so that I/P Engine could respond, Defendants
refused to elaborate. See Exs. 24-25. I/P Engine has pointed out to Google that "Google's
response [to Intenogatory No. 6] does not include any mention of 'collaborative filtering[T"
Ex. 24. If Defendants have a non-infringement theory that is based on some interpretation of the
claims that includes a special definition of "collaborative filtering," then it should be included in
Defendants' respective responses to I/P Engine's non-infringement interrogatories. As of the
filing of Defendants' Motion, the phrase "collaborative filtering" still did not appear in their noninfringement contentions. 8
8
Google's non-infringement contentions served after the filing of their motion do mention
"collaborative filtering," although they still fail to tie this concept to any particular claim
language.
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If Defendants intended to refer to "collaborative feedback data," (a claimed feature) then
no supplementation is necessary. For Google Search, I/P Engine's present infringcment
contentions explain that "Google collects data regarding results viewed by users" and, in support,
the contentions cite Google's own statement that "with [search] logs, we can improve our search
results: if we know that people are clicking on the #1 result we're doing something right." Ex. 2
at 6. The use of this feedback data in filtering is similarly explained. The contentions state that
"[u]pon information and belief, Google Search also uses collected feedback data to improve how
the search algorithm filters items for relevance to the query" and that "Google describes using
feedback data, such as user-click-data, to alter a score associated with a document." Id. A
Google employee is cited as stating: "Google makes it obvious that it uses click data . . . ." Id.
I/P Engine's assertions with regard to the receipt and use of collaborative feedback data has been
adequately explained.
As for IAC's Ask.com Sponsored Listings, I/P Engine's contentions likewise explain the
features that meet the "collaborative feedback data." The contentions quote IAC's documents,
stating: "Placement of ads on the Ask Sponsored Listings (ASL) network may vary across the
ASL network according to [factors including] the click volume your ads received in comparison
to that of other advertisers (CTR)." Ex. 3 at 6.
The Google Search and Ask.com Sponsored Listings infringement contentions are
sufficient to place Google and IAC on notice of I/P Engine's present contentions. The mere fact
that I/P Engine's contentions with respect to these systems rely on publicly available
documentation does not in itself indicate any deficiency. The contentions contain specific
evidence of the relevant portions of the system that I/P Engine has identified to date, and these
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documents place both Google and IAC respectively on notice as to the features that I/P Engine
contends infringe. 9
IV. CONCLUSION
l/P Engine's present infringement contentions are clear, comprehensive, and sufficient as
a matter of law. They serve their function of providing adequate notice to Defendants as to the
basis of I/P Engine's current infringement theory. Defendants' Motion to Compel should be
denied.
Dated: April 12, 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: (757) 623-3000
Facsimile: (757) 623-5735
Jeffrey K. Sherwood (Virginia Bar No. 19222)
Frank C. Cimino, Jr.
Kenneth W. Brothers
DeAima Allen
Charles J. Monterio, Jr.
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: (202) 420-2200
Facsimile: (202) 420-2201
Counsel for Plaintiff VP Engine, Inc.
9
As noted above, I/P Engine will update its contentions as additional documents and testimony
are elicited.
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CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of April, 2012, the foregoing OPPOSITION TO
GOOGLE AND IAC'S MOTION TO COMPEL PLAINTIFF TO SUPPLEMENT ITS
INFRINGEMENT CONTENTIONS, 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
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.burnsfmnegan.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/ Jeffrey K. Sherwood
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