HYPERPHRASE TECHNOLOGIES, LLC v. GOOGLE INC.
AFFIDAVIT of Raymond P. Niro filed by Plaintiffs HYPERPHRASE INC., HYPERPHRASE TECHNOLOGIES, LLC, Counter Defendants HYPERPHRASE INC., HYPERPHRASE TECHNOLOGIES, LLC Response re: 100 MOTION for Summary Judgment filed by GOOGLE INC. (Sealed Document) (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) (Niro, Raymond)
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN HYPERPHRASE TECHNOLOGIES, LLC and HYPERPHRASE INC., Plaintiffs, v. GOOGLE INC., Defendant. GOOGLE'S RESPONSE TO HYPERPHRASE'S MOTION FOR A NEW SCHEDULE FOR SUMMARY JUDGMENT ON GOOGLE'S LICENSE DEFENSE Before HyperPhrase filed the present motion, Google indicated to HyperPhrase that it would discuss and, if reasonable, accommodate the further discovery HyperPhrase purportedly needs before filing its opposition to Google's motion for summary judgment regarding the license defense. Google was therefore surprised when HyperPhrase filed this motion rather than responding to Google's proposal. Google's license defense is simple: the Microsoft software upon which HyperPhrase premises almost all of its infringement theory, and the use thereof, is fully licensed by HyperPhrase. See, e.g., Memorandum ISO of Google's Motion for Summary Judgment of Noninfringement (Dkt. No. 103) at 29-32. A favorable ruling for Google on this issue would eliminate over 95% of HyperPhrase's alleged damages. Interpreting the license is a question of law, and so Google does not understand what further discovery HyperPhrase needs to respond to the motion. Nevertheless, as HyperPhrase's motion notes, there is no need for the Court to reach the license issue if it finds the two remaining patents either invalid or not infringed. See HyperPhrase Motion (Dkt. No. 122) at 2 ("If the Court's decision on those motions does not terminate the case ..."). Therefore, Google agrees that further discovery (to the extent Civil Action No. 06-cv-199-bbc
reasonable and necessary) and briefing on the license issue can be deferred until after the Court decides Google's other summary judgment motions. Accordingly, Google ASSENTS to the delay in the briefing schedule requested in HyperPhrase's motion. Google OBJECTS to HyperPhrase's request for unspecified additional discovery pertaining to the license motion, but will revisit this objection pending HyperPhrase making specific discovery demands. Respectfully submitted, Dated: April 7, 2008 /s/ Jason W. Wolff Jason W. Wolff (email@example.com) FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, CA 92130 Telephone: (858) 678-5070 Facsimile: (858) 678-5099 Frank E. Scherkenbach (firstname.lastname@example.org) FISH & RICHARDSON P.C. 225 Franklin Street Boston, MA 02110 Telephone: (617) 542-5070 Facsimile: (617) 542-8906 James D. Peterson (email@example.com) James A. Friedman (firstname.lastname@example.org) GODFREY & KAHN, S.C. One East Main Street, Suite 500 Madison, WI 53701-2719 Telephone: (608) 257-3911 Facsimile: (608) 257-0609 Of Counsel: Kurt L. Glitzenstein (email@example.com) Christoper Dillon (firstname.lastname@example.org) FISH & RICHARDSON P.C. 225 Franklin Street Boston, MA 02110 Attorneys for Defendant GOOGLE INC. 2
CERTIFICATE OF SERVICE I hereby certify that on the 7th day of April 2008, a true and correct copy of the following document was filed with the Clerk of the Court using the ECF filing system, which will send notification of such filing to the following: GOOGLE'S RESPONSE TO HYPERPHRASE'S MOTION FOR A NEW SCHEDULE FOR SUMMARY JUDGMENT ON GOOGLE'S LICENSE DEFENSE Attorneys for Plaintiffs HYPERPHRASE TECHNOLOGIES, LLC and HYPERPHRASE INC. Kim Grimmer, Esq. Jennifer L. Amundsen, Esq. Solheim Billing & Grimmer, S.C. One South Pinckney Street, Suite 301 Madison, WI 53703 email@example.com firstname.lastname@example.org Attorneys for Plaintiffs HYPERPHRASE TECHNOLOGIES, LLC and HYPERPHRASE INC. Raymond P. Niro, Esq. Niro, Scavone, Haller & Niro 181 West Madison Street, Suite 4600 Chicago, IL 60602 email@example.com
/s/ Jason W. Wolff Jason W. Wolff
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