Apple, Inc. v. Motorola, Inc. et al

Filing 151

Notice by Counter Claimants Apple, Inc., Next Software, Inc., Plaintiffs Apple, Inc., Next Software, Inc., Counter Defendants Apple, Inc., Next Software, Inc. re 148 Notice (Other), Notice (Other) Response To Motorolas Notice of Supplemental Authority Concerning Claim Construction. (Peterson, James) Modified party text on 9/8/2011 (mmo).

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN APPLE INC. and NEXT SOFTWARE, INC. (f/k/a NeXT COMPUTER, INC.), Plaintiffs and Counterclaim Defendants, v. MOTOROLA, INC. and MOTOROLA MOBILITY, INC., Defendants and Counterclaim Plaintiffs. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 10-CV-662 (BBC) JURY TRIAL DEMANDED APPLE INC.’S AND NEXT SOFTWARE INC.’S RESPONSE TO MOTOROLA’S NOTICE OF SUPPLEMENTAL AUTHORITY CONCERNING CLAIM CONSTRUCTION Plaintiffs Apple Inc. (“Apple”) and NeXT Software, Inc. (“NeXT”) respectfully respond to Motorola’s Notice of Supplemental Authority Concerning Claim Construction, D.I. 148, to which Motorola attaches the public version of the Initial Determination by an Administrative Law Judge of the United States International Trade Commission In the Matter of CERTAIN PERSONAL DATA AND MOBILE COMMUNICATION DEVICES AND RELATED SOFTWARE, Investigation No. 337-TA710 (“ALJ Initial Determination”). Motorola asserts that this Court should consider the ALJ Initial Determination as authority for construction of the term “dynamic binding” in claim 1 of U.S. Patent No. 5,481,721 (“the ’721 patent”), which is presently before the Court in Civil Action No. 10-CV-662-BBC connection with the pending claim construction proceedings. For the reasons that Apple has already fully briefed, Apple respectfully submits that the Court should not follow the ALJ Initial Determination as to the construction of “dynamic binding” and should instead construe the term consistent with Apple’s proposed construction here. The ALJ’s construction of “dynamic binding” was incorrectly premised on reading a preferred “Objective C” embodiment of the ’721 patent into the claims. ALJ Initial Determination at 220-21. Apple explained in its claim construction briefing that limiting the claims to the Objective C preferred embodiment is improper because (1) the ’721 patent specification teaches that the “invention may be implemented in any type of computer system or programming or processing environment,” and thus is not limited to an Objective C environment; and (2) dependent claim 8 of the ’721 patent is itself limited to Objective C, underscoring the incorrectness of reading such a limitation into independent claim 1, from which claim 8 depends. See Apple’s Opening Claim Construction Brief, D.I. 91, at 123-27 (June 17, 2011); Apple’s Responsive Claim Construction Brief, D.I. 106, at 16-22 (July 15, 2011). The ALJ Initial Determination did not address these points. In addition, the Cox and NeXTSTEP references cited in the ALJ Initial Determination contradict its construction of “dynamic binding” and indeed support Apple’s construction, for the reasons discussed in Apple’s claim construction briefing. See Apple Opening Brief at 126-27; Apple Responsive Brief at 18. Apple’s briefing also cites additional support for the plain and ordinary meaning of “dynamic binding” as specifying that binding occurs during runtime (as opposed to binding at compile time), consistent with Apple’s proposed construction, which is not referenced in the ALJ Initial Determination. See id. 2 Accordingly, for the reasons explained by Apple in its claim construction briefing, Apple respectfully submits that the ALJ’s construction of “dynamic binding” should not be followed here. September 7, 2011 s/ James D. Peterson James D. Peterson (# 1022819) GODFREY & KAHN, S.C. One East Main Street, Suite 500 P.O. Box 2719 Madison, WI 53701-2719 Telephone: (608) 257-3911 Facsimile: (608) 257-0609 Jill J. Ho WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065 Telephone: (650) 802-3000 Facsimile: (650) 802-3100 Mark G. Davis WEIL, GOTSHAL & MANGES LLP 1300 Eye Street, N.W., Suite 900 Washington, DC 20005 Telephone: (202) 682-7000 Facsimile: (202) 857-0940 Elizabeth Stotland Weiswasser WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153 Telephone: (212) 310-8000 Facsimile: (212) 310-8007 3 Matthew D. Powers Steven S. Cherensky TENSEGRITY LAW GROUP LLP 201 Redwood Shores Parkway, Suite 401 Redwood Shores, CA 94065 Telephone: 650-802-6000 Facsimile: 650-802-6001 Robert T. Haslam COVINGTON & BURLING LLP 333 Twin Dolphin Drive, Suite 700 Redwood Shores, CA 94065-1418 Telephone: (650) 632-4700 Facsimile: (650) 632-4800 Attorneys for Plaintiffs Apple Inc. and NeXT Software, Inc. 6800374_1 4

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