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

Filing 897

Declaration re 896 Response in Support of Motion for a New Trial on the Dollar Amount of Past Damages by I/P Engine, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sherwood, Jeffrey)

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

DECLARATION OF KENNETH W. BROTHERS IN SUPPORT OF I/P ENGINE INC.’S
REPLY REGARDING ITS MOTION FOR A NEW TRIAL ON THE DOLLAR
AMOUNT OF PAST DAMAGES

I, Kenneth W. Brothers, declare as follows:
1.

I am a partner with the law firm of Dickstein Shapiro LLP, 1825 Eye Street N.W.,

Washington, DC 20006 and am counsel for Plaintiff I/P Engine, Inc. (“I/P Engine”) in the abovecaptioned litigation. I have personal knowledge of the facts stated herein.
2.

Attached hereto as Exhibit A is a true and correct copy of PDX-083, which was

shown at trial.
3.

Counsel for both I/P Engine and the Defendants exchanged demonstrative

exhibits prior to closing arguments. Exhibit B, attached hereto, is a true and correct copy of one
of the demonstratives provided by Defendants’ counsel. Defendants counsel indicated his intent
to use Exhibit B at closing during the un-transcribed instruction conference.
4.
shown at trial.

Attached hereto as Exhibit C is a true and correct copy of PDX-077, which was

5.

Defendants submitted a declaration from Mr. Nelson, which they rely on in their

opposition brief, in which Mr. Nelson states, “As soon as Defendants’ counsel located [Odetics],
we immediately presented it (by hand) to both the Court and Plaintiff’s counsel.” (D.I. 865, ¶ 4.)
This statement is false. I am now aware that, during the recess following I/P Engine’s initial
closing statement, Defendants’ counsel (Mr. Noona and Mr. Bilsker) provided a copy of the
Odetics case to the Court. Neither Mr. Noona, Mr Bilsker, nor any other counsel for Defendants,
disclosed that fact to me or any other attorney for I/P Engine. During that recess, the Court
considered the case, and decided to change its laches ruling. After the Court announced its
decision, I noted that I had not received a copy of the case (Trial Tr. at 2018:3-6) nor was I aware
that Defendants had provided it to the Court. The Court inquired about why I was not provided a
copy, and Mr. Nelson responded, “I didn’t have a copy of the case. I had a citation.” (Trial Tr.
at 2018:7-10.) At that point Mr. Nelson’s co-counsel, Mr. Bilsker, stood up and handed me a
copy of the Odetics case.
I declare under penalty of perjury that the foregoing is true and correct.

Dated: February 15, 2013

By: ___/s/ Kenneth W. Brothers______
Kenneth W. Brothers
DICKSTEIN SHAPIRO LLP
1825 Eye Street, NW
Washington, DC 20006
Telephone: [phone]
Facsimile: [phone]
Counsel for Plaintiff I/P Engine, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of February, 2013, the foregoing
DECLARATION OF KENNETH W. BROTHERS IN SUPPORT OF I/P ENGINE INC.’S
REPLY REGARDING ITS MOTION FOR A NEW TRIAL ON THE DOLLAR
AMOUNT OF PAST DAMAGES, 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
[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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