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

Filing 711

Declaration re 710 Memorandum in Support, of Emily O'Brien in Support of Defendants Emergency Motion For Sanctions and To Strike Plaintiffs Supplemental Expert Report In Violation Of the Courts October 9 Order by AOL Inc., Gannett Company, Inc., Google Inc., IAC Search & Media, Inc., Target Corporation. (Attachments: # 1 Exhibit 1)(Noona, Stephen)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
__________________________________________
)
I/P ENGINE, INC.,
)
)
Plaintiff,
)
v.
)
)
AOL, INC. et al.,
)
)
Defendants.
)
__________________________________________)

Civ. Action No. 2:11-cv-512

SECOND UPDATED EXPERT REPORT OF OPHIR FRIEDER
ON INFRINGEMENT OF U.S. PATENT NOS. 6,314,420 AND 6,775,664

I.

INTRODUCTION
1.

I have been retained by Dickstein Shapiro LLP, attorneys for I/P Engine, Inc.

(“I/P Engine”) in the above-captioned case, which I understand to be a patent infringement case
involving U.S. Patent Nos. 6,314,420 (“the ‘420 patent”) and U.S. Patent No. 6,775,664 (“the
‘664 patent”). I previously submitted a report on July 25, 2012, and an updated report on
September 4, 2012, in which I opined that all asserted claims are infringed.
2.

I update my report in view of the Court’s Order of October 9, 2012 (D.I. 697), and

in view of the additional source code produced by Google after the close of discovery on
September 17, 2012, subsequent to my deposition in this case and my expert reports.

CONFIDENTIAL OUTSIDE COUNSEL ONLY

II.

NON-INFRINGING ALTERNATIVES
3.

I have reviewed the “non-infringing alternatives” set forth in Dr. Ungar’s August

30, 2012 Expert Report Concerning Noninfringement and Dr. Ugone’s August 29, 2012 Rebuttal
Expert Report.
4.

In my opinion, none of the alternatives set forth in Dr. Ungar and Dr. Ugone’s

reports would have the same advantages of the system currently used by Google, and none of
them would be acceptable substitutes for Google’s current system. The proposed alternatives
would not produce the same quality results because none of the proposed alternatives would
consider the relevance of an advertisement to the user’s query.

III.

ADDITIONAL SOURCE CODE PRODUCTION
5.

Since my July 25 report and September 4 update, and my September 6 deposition,

I have learned that Google produced additional source code on September 17, 2012, after the
close of discovery.
6.

The “Google17” model includes attribute templates corresponding to, among
. See SC-G-

other things, the
IPE00000151-154 (for example,

. These

attribute templates are similar to attribute templates identified in the prior source code
productions. See SC-G-IPE00000001-4 (for example,
. The source code shows that other earlier models
also included attribute templates corresponding to the
. See SC-G-IPE00000151-229 (for example, “Google15,” “Google9” and
“Google7” models).

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CONFIDENTIAL OUTSIDE COUNSEL ONLY

7.

The models produced on September 17, 2012 therefore further confirm that

historical versions of SmartASS infringe the asserted patents for the same reasons as set forth in
my July 25 report. Specifically, it confirms my conclusion, supported by the documents and
testimony cited in my original report, that the accused AdWords systems have infringed the
asserted claims of the ‘420 and ‘664 patents since the launch of SmartASS in 2004.
8.

Executed on this 11th day of October 2012, in Washington, DC.
By
Ophir Frieder

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CONFIDENTIAL OUTSIDE COUNSEL ONLY

CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of October, 2012, the foregoing SECOND
UPDATED EXPERT REPORT OF OPHIR FRIEDER ON INFRINGEMENT OF U.S.
PATENT NOS. 6.314.420 AND 6,775,664, was served via electronic mail, on the following:
Stephen Edward Noona
Kaufman & Canoles, P.C.
150 W Main St
Suite 2100
Norfolk, VA 23510
[e-mail]
David Bilsker
David Perlson
Quinn Emanuel Urquhart & Sullivan LLP
50 California Street, 22nd Floor
San Francisco, CA 94111
[e-mail]
[e-mail]
Robert L. Burns
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Two Freedom Square
11955 Freedom Drive
Reston, VA 20190
[e-mail]
Cortney S. Alexander
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
3500 SunTrust Plaza
303 Peachtree Street, NE
Atlanta, GA 94111
[e-mail]
/s/ Jeffrey K. Sherwood

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