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there is still a lot of short selling on this stock. Over 478,000 shares.
http://regsho.finra.org/FNSQshvol20121003.txt
yep, the 52 week low is just $4.00
24,300 plus 56,330 shares sold short yesterday.
http://regsho.finra.org/FNYXshvol20121002X.txt
Apparently this Barron's writer never purchased any CNU
I am just trying to act as a filter and screen out as much noise as possible. GLTY. I hope you do very well
I have no idea to whom those shares were gifted and I don't know how one would find out. If they came from his Personal account the only people who would know would be him, the recicient, maybe the IRS and whoever TOA'd them out of his acct. at his brokerage firm. All of them inside people, who for ethical reason should respect his privacy.
Sorry, it would be it would be interesting info but I don't know how you can get at it.
Cautiously Optimistic.
Thank you JonnyQwan Raging bull #335314: ( in response to Beenwaitin0 )
" Well Been... here you go...
It is obvious in the joint letter just filed with the court in San Francisco, that Vertical is VERY happy with the USPTO examiner making it clear that he will allow the new claims 54 - 57 of the 744 patent, if Vertical agrees to cancel the rejected claims. They seem especially happy that new claims 56 and 57 are about to become part of the 744 patent as it will read, emerging from reexamination.
( I understand that they are currently not "official" claims, but in the latest joint letter, Vertical makes it clear that they will accept the examiner's compromise, and these new claims will clearly be part of the 744 patent as it will emerge, coming out of the reexamination.)
From the new joint letter sent to the court in San Francisco:
Claims 56 and 57 read as follows:
56. A method for generating a computer application on a host system in an arbitrary object framework that separates a content of said computer application, a form of said computer application and a functionality of said computer application, said method comprising:
creating arbitrary objects with corresponding arbitrary names of various object types for generating said content of said computer application, said form of said computer application, and said functionality of said computer application, said arbitrary objects being objects that can be created independently by individual preference, that are interchangeable, and that may
be, but need not be, accessed solely by name, the object being an entity that can have form, content, or functionality or any combination of form, content and functionality; managing said arbitrary objects in an object library; and deploying said arbitrary objects from said object library into a design framework to create said computer application.
57. A method for generating a web site on a host system in an arbitrary object framework that separates a content of said web site, a form of said web site, and a functionality of said web site, said method comprising: creating arbitrary objects with corresponding arbitrary names of various object types for generating said content of said web site, said form of said web site, and said functionality of said web site, said arbitrary objects being objects that can be created independently by individual preference, that are interchangeable, and that may be, but need not be, accessed solely by name, the object being an entity that can have form, content, or functionality or any combination of form, content and functionality;
managing said arbitrary objects in an object library; and deploying said arbitrary objects from said object library to a container
page to create said web site.
Claims 56 and 57 differ only from the previous independent claims 1 and 26 in that they adopt additional language from the Court’s Claim Construction Order, indicated by underscore above. Specifically, the additional language includes the Court’s construction of the term “arbitrary object[s].†These changes do not substantially change the claims at all but merely clarify the scope of the claims using language provided by the Court. Thus, it is indisputable that res judicata would bar Vertical from asserting claims 56 and 57 against Interwoven in a separate, later lawsuit."
Now... let me ask you a question. Why would ANY Judge, not allow these new claims to be included in the Interwoven Vs VCSY litigation, when #1.. Interwoven brought the action against VCSY! ( Interwoven continues to play the victim, when in fact, they brought the lawsuit.) And... #2.. The new claims, as they will be written, only add the adjudicated language that was included by Judge Seeborg in his claims rulings after the Markman Hearing??????
Judge Seeborg Claims Construction ruling told us the legal meaning of the claims. Interwoven was not happy with those adjudicated definitions, so they took their arguments to the Patent Office. Unfortunately for Interwoven, and VERY fortunate for us longs, the USPTO agreed with the District Judge's opinion, and allowed the exact language from that Judge's decision to become the new, improved 744 patent.
That makes 744 ( and by proxy 629 ) BULLETPROOF!!!!!!!!!!! "
Thank You JonnyQwan: Raging Bull #335180
Fresh PACER out of SF.....
Interwoven should NEVER have medded with Vertical!!!!
September 28, 2012
BY ELECTRONIC FILING
Honorable Joseph C. Spero
United States Magistrate Judge
United States Courthouse
450 Golden Gate Avenue
Courtroom G, 15th Floor
San Francisco, CA 94102
Re: Interwoven, Inc. v. Vertical Computer Systems, Inc.
Case No. 3:10-cv-04645-RS (N.D. Cal.)
Joint Letter Regarding Vertical’s Amended Infringement Contentions
Dear Judge Spero:
INTERWOVEN’S INTRODUCTION
This litigation has advanced well-past the initial stages, with the close of fact discovery looming in
less than a month, on October 26, 2012. The initial complaint was filed almost two years ago, on
October 14, 2010. Judge Seeborg issued a Markman order construing the important terms of the
then-asserted claims on December 30, 2011. Reexaminations of the two Patents-In-Suit were filed on
January 1, 2012 and March 5, 2012. To date, Interwoven has produced more than 138,000 pages of
documents, including all of the technical documentation related to the accused product. Interwoven’s
source code has been available for inspection since July 11, 2012.1 The parties have identified
30(b)(6) deponents, prepared witnesses, and scheduled multiple party and third-party depositions for
the coming weeks.
Under the Northern District of California’s Patent Local Rules, amendments to infringement
contentions are allowed only with good cause to prevent unfair ambush. See Patent L.R. 3-6
(emphasis added). This is especially important at this late stage in the litigation. In this case,
Vertical’s amendments to its infringement contentions lack good cause, are baseless, improper,
unwarranted, and should accordingly, be stricken.
1 Despite the source code being available since July, Vertical has not inspected it.
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Honorable Joseph C. Spero
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Vertical’s Amended Infringement Contentions lack good cause and must be stricken for three
reasons. First, they include new claims drafted during the reexamination of the Patents-In-Suit that
have not been allowed and have not yet issued. Second, they include seven additional claims from
the Patents-in-Suit that were not part of the Court’s claim construction process as governed by Patent
L.R. 3-1 and 4-1 to 4-6. Finally, Vertical’s failure to cite to any documents, source code, or witness
testimony from this litigation demonstrates that the amendments were not made based on good cause
as they were not based on the grounds for amendment Vertical asserted before this Court, or for any
reason permitted by Patent L.R. 3-6.
The sole disputed issue addressed in this letter is whether Vertical’s Amended Infringement
Contentions should be stricken.2 Such a dispute falls squarely within the realm of discovery, and is
entirely appropriate for resolution by Judge Spero, to whom all discovery disputes in this case have
been referred. See FusionArc, Inc. v. Solidus Networks, Inc., Case No. 6-cv-06760-RMW-RS, 2007
WL 1052900 (N.D. Cal. April 5, 2007), Shared Memory Graphics LLC v. Apple, Inc., 812 F. Supp.
2d 1022 (N.D. Cal. 2010) (finding disputes related to patent infringement contentions under Patent
L.R. 3-1 are properly considered discovery disputes). Whether this dispute is ultimately decided by
either Judge Spero or Judge Seeborg, Interwoven would be happy to provide any additional briefing,
or participate in oral argument, if it would be helpful to the Court.
Interwoven also proposes the following compromise position, as required by the Court’s Standing
Order. Should the Court allow Vertical to include additional claims, or claims yet to be confirmed by
the PTO, Interwoven proposes a stay of this litigation pending the completion of the reexaminations,
which Vertical has represented to be imminent. Upon the completion of the reexamination,
Interwoven request that the Court revisit claim construction to include a supplemental Markman
hearing, at which time Vertical should be able to present a clear and unchanging set of infringement
allegations against which Interwoven can adequately defend itself.
VERTICAL’S INTRODUCTION
Defendant Vertical Computer Systems, Inc. (“Verticalâ€) opposes Plaintiff Interwoven, Inc.’s
(“Interwovenâ€) motion to strike Vertical’s Amended Infringement Contentions. Interwoven agreed
to allow Vertical to amend the infringement contentions and Vertical agreed to allow Interwoven to
amend its invalidity contentions. The parties did not place any limitation on the scope of the
amendments. The grounds that the parties presented to the Court for the amendments were the
Court’s claim construction order and the need for further discovery relating to the accused system.
The parties filed a proposed stipulation to allow the amendments. The Court entered it.
Interwoven now seeks to undo the agreement between the parties and the entered stipulation,
primarily because the reexaminations that it filed against the Patents-In-Suit have not accomplished
its objectives. It seeks to severely prejudice Vertical’s case and eliminate legitimate claims in the
context of a summary discovery procedure. Interwoven also seeks (without briefing and a hearing)
2 The parties met and conferred in person in Palo Alto, CA on Friday, September 21, 2012, as
required by Judge Spero’s standing order, but were unable to reach an agreement on this matter.
Case3:10-cv-04645-RS Document126 Filed09/28/12 Page2 of 11
Honorable Joseph C. Spero
September 28, 2012
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alternative relief which would reverse the District Court's order denying a previous Interwoven
motion to stay the proceedings and which would open claim construction without a legitimate reason.
Thus, for the reasons outlined below, Vertical respectfully requests that the Magistrate deny this
motion and send this issue back to Judge Seeborg for formal briefing and hearing.
Interwoven filed this action on October 14, 2010, against Vertical for declaratory judgment of
invalidity, unenforceability, and non-infringement of Vertical’s Patent Nos. 6,826,744 (“the ‘744
patentâ€) and 7,716,629 (“the ‘629 patentâ€). (Dkt. No. 1.) Vertical filed its answer with a
counterclaim for patent infringement on February 22, 2011 seeking damages in the form of lost
profits and a permanent injunction against Interwoven. (Dkt. No. 45.) The parties fully briefed claim
construction, and on December 30, 2011, the Court issued its Claim Construction Order. (Dkt. No.
83).
Following that Order, on January 6, 2012, Interwoven filed requests for ex parte reexaminations of
both the ‘629 and ‘744 Patents with the Patent Office. Interwoven also filed a motion to stay this
litigation pending reexamination on January 8, 2012 (Dkt. No. 86), which the Court subsequently
denied on March 8, 2012, noting,“[t]hat Interwoven waited until after receiving an unfavorable ruling
to request reexamination lends credence to Vertical’s contention that the current motion is simply a
delaying strategy.†(Dkt. No. 102 at 4).
On July 24, 2012, the parties filed a Stipulated Request for Order Allowing Amendment of
Infringement and Invalidity Contentions and Clarifying Timing of Expert Testimony (Dkt. No. 122).
The parties agreed such amended contentions were necessary in light of the need for further
discovery and the Court’s Claim Construction Order. The Court granted the Stipulation the same
day, in no way limiting the amendments made to the Initial Contentions. (Dkt. No. 123). Vertical
attempted to depose Interwoven regarding the technical issues involved in the infringement
contentions without success. It also did not suspect Interwoven’s source code because it could not
identify and retain an expert. It nevertheless amended the infringement contentions with the better
understanding that discovery allowed. It also made clear to Interwoven that further amendments may
be necessary depending on the outcome of the reexaminations.
On August 31, 2012 and pursuant to the Court’s Order, Vertical served its Amended Infringement
Contention. It added claims 16-17, 22, 28-39, 43-44, and 53 of the ‘744 Patent. Further, in the
interest of judicial economy and preserving its claims against Interwoven, Vertical asserted claims
56-57, which it added the ‘744 Patent during reexamination. The Patent Office indicated these claims
are allowable in its September 13, 2012 Ex Parte Reexamination Advisory Action. (Defendant’s Exh.
A).
1. Vertical’s Proposed Amendments with Respect to Unissued Draft Claims of the ’744
Patent (Proposed in Reexamination)
Interwoven’s Statement: In this District, the purpose of infringement contentions is to “require the
party claiming infringement ‘to crystallize its theories of the case early in the litigation and to adhere
to those theories once disclosed.’†Id. (quoting Bender v. Advanced Micro Devices, Inc., 2010 WL
363341, at *1 (N.D. Cal. Feb. 1, 2010); see also LG Elecs. Inc. v. Q-Lity Computer Inc., 211 F.R.D.
Case3:10-cv-04645-RS Document126 Filed09/28/12 Page3 of 11
Honorable Joseph C. Spero
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360, 367 (N.D. Cal. 2002) (summarizing the general philosophy of preventing the ‘shifting sands’
approach to claim construction). Despite the Patent Local Rules and the clear case law on point in
this District, Vertical’s late stage amendments ignore this directive. Vertical has further asserted that
it intends to amend its infringement contentions again once the reexaminations of the Patents-In-Suit
are complete.
In its amended infringement contentions, received mere weeks before the close of fact discovery
Vertical has alleged infringement of draft claims proposed in the ongoing reexamination of the ’744
Patent. Vertical has added newly-drafted (not yet issued) claims 56 and 57, which were submitted to
the Patent Office on August 21, 2012 in response to the Final Rejection issued by the Patent Office
on June 21, 2012. These claims have not yet issued, and thus, they are not ripe for adjudication in
these proceedings. See 37 C.F.R. 1.530 (stating that “[a]lthough amendments will be entered for
purposes of examination, the amendments are not legally effective until the reexamination certificate
is issued and publishedâ€) (emphasis added).
For the simple reason that these draft claims have yet to be found patentable by the Patent Office,
they are inappropriate for inclusion in Vertical’s Amended Infringement Contentions. Vertical
cannot assert that Interwoven’s products infringe patent claims that do not exist and have not issued
in a final form.3 It is impossible for Interwoven to defend itself against these allegations.
Vertical’s Statement:
A. Vertical will be Severely Prejudiced if its Amended Infringement Contentions are
Stricken Because Res Judicata Bars Vertical from Bringing a Subsequent Action against
Interwoven on Claims 56 and 57 of the ‘744 Patent
In the interest of judicial economy and preserving its claims against Interwoven, Vertical asserted
newly added claims 56-57 of the ‘744 Patent, which the Patent Office explained were allowable in its
September 13, 2012 Ex Parte Reexamination Advisory Action. (Defendant’s Exh. A at page 3). The
Advisory Action indicates that proposed new claims 54-57 are allowable “if submitted in a separate,
timely filed amendment canceling the non-allowable claim(s).†Vertical is required to assert newly
added claims 56 and 57 in this action, otherwise res judicata will bar Vertical from bringing the
claims against Interwoven in a separate, subsequent action.
In Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., the Federal Circuit agreed with the District Court
that a patentee is barred from bringing a second, later lawsuit against an alleged infringer based on
new versions of claims that were part of the patent-in-suit prior to its reexamination. 672 F.3d 1335,
1341 (Fed. Cir. 2012). Amended and new claims of the reexamined patent-in-suit did not create new
causes of action for the patentee, separate from the causes of action created by the original patent. Id.
at 1341. The court provided that the changes made to the amended claim in reexamination were
insubstantial, and the wholly new claim contained only an insignificant change that “at most, narrows
3 The Patent Office has said that the new claims could be allowed if Vertical cancels the other,
rejected claims (which they have not done).
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Honorable Joseph C. Spero
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the scope of the claim in a way that does not affect the product [] at issue.†Id. Here, Vertical has
taken the previous independent claims and added the Court’s claim construction.
Claims 56 and 57 read as follows:
56. A method for generating a computer application on a host system in an
arbitrary object framework that separates a content of said computer
application, a form of said computer application and a functionality of said
computer application, said method comprising:
creating arbitrary objects with corresponding arbitrary names of various
object types for generating said content of said computer application, said form
of said computer application, and said functionality of said computer
application, said arbitrary objects being objects that can be created
independently by individual preference, that are interchangeable, and that may
be, but need not be, accessed solely by name, the object being an entity that
can have form, content, or functionality or any combination of form, content
and functionality;
managing said arbitrary objects in an object library; and
deploying said arbitrary objects from said object library into a design
framework to create said computer application.
57. A method for generating a web site on a host system in an arbitrary object
framework that separates a content of said web site, a form of said web site,
and a functionality of said web site, said method comprising:
creating arbitrary objects with corresponding arbitrary names of various
object types for generating said content of said web site, said form of said web
site, and said functionality of said web site, said arbitrary objects being objects
that can be created independently by individual preference, that are
interchangeable, and that may be, but need not be, accessed solely by name,
the object being an entity that can have form, content, or functionality or any
combination of form, content and functionality;
managing said arbitrary objects in an object library; and
deploying said arbitrary objects from said object library to a container
page to create said web site.
Claims 56 and 57 differ only from the previous independent claims 1 and 26 in that they adopt
additional language from the Court’s Claim Construction Order, indicated by underscore above.
Specifically, the additional language includes the Court’s construction of the term “arbitrary
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Honorable Joseph C. Spero
September 28, 2012
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object[s].†(Dkt No. 83 at 17-18.) These changes do not substantially change the claims at all but
merely clarify the scope of the claims using language provided by the Court. Thus, it is indisputable
that res judicata would bar Vertical from asserting claims 56 and 57 against Interwoven in a separate,
later lawsuit.
Further, the Patent Office’s Advisory Opinion has clearly indicated that claims 56 and 57 are
allowable, and it is therefore immaterial that a Reexamination Certificate has not yet issued. Indeed,
courts in this District have allowed parties to amend infringement contentions to include claims in
reexamination prior to issuance of a certificate. See Acer, Inc. v. Tech. Props., 2011 U.S. Dist.
LEXIS 55774, at *4, 15 (N.D. Cal. May 13, 2011) (granting patentees motion to amend its
infringement contentions to replace claims amended or cancelled during reexamination after the
USPTO issued Notice of Intent to Issue Reexamination Certificate but prior to issuance of the
certificate). Moreover, even where leave to amend contentions has not already been granted, courts
have regularly allowed amendment of infringement contentions following reexamination. See, e.g.,
id; Zilog, Inc. v. Quicklogic Corp., 2006 U.S. Dist. LEXIS 12844, at **3-5 (N.D. Cal. Mar. 6, 2006).
B. Vertical’s Inclusion of Claims 56 and 57 is in the Interest of Judicial Economy
Judicial efficiency supports inclusion of claims 56 and 57 in Vertical’s Amended Infringement
Contentions. If the Court strikes Vertical’s Amended Infringement Contentions, Vertical will be
required to later move for leave to amend after the Patent Office issues a Reexamination Certificate
on claims 56 and 57 in order to preserve its claims against Interwoven. Rather than burden the Court
with yet more motion practice, the Court should allow Vertical’s infringement contentions against
Interwoven with respect to claims 56 and 57 at this juncture in the litigation. See, e.g., Acer, Inc.,
2011 U.S. Dist. LEXIS 55774, at *15 (holding that “[patentee’s] right to assert new claims [after
reexamination] and the Court’s interest in resolving the parties’ disputes as comprehensively as is
possible†outweighed any prejudice to accused infringer caused by additional discovery or prior art
research).
2. Vertical’s Proposed Assertions of Additional Existing Claims of the ’744 Patent
Interwoven’s Statement: Vertical has also asserted infringement of additional, existing claims 16,
17, 22, 38, 39, 43, and 44 of the ’744 Patent, which had not previously been asserted by Vertical in
this case. Vertical’s introduction of existing claims for the first time at this stage of litigation
contravenes both the Patent Local Rules and the spirit in which they were drafted, not to mention the
case law of this Court that prohibits just such a “shifting sands†approach to patent litigation. See LG
Elecs., 211 F.R.D. at 367. Vertical never mentioned these claims to Interwoven or to the Court at any
point prior to August 31, 2012. The parties did not consider these claims when discussing terms in
need of claim construction, and the Court did not have any opportunity to consider any potentially
disputed claim terms during the Markman hearing on December 14, 2012, or in its December 30,
2012 Markman order.
The substance of these claims was well-known to Vertical before this litigation. Further, because
Vertical’s amended infringement contentions are not based on discovery revealed for the first time
here, such inclusion of new claims at this point is entirely groundless. As explained by this Court, the
Case3:10-cv-04645-RS Document126 Filed09/28/12 Page6 of 11
Honorable Joseph C. Spero
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Patent Local Rules regarding infringement contentions are intended to provide “structure to discovery
and enable the parties to move efficiently toward claim construction and the eventual resolution of
their dispute.†Shared Memory Graphics LLC v. Apple, Inc., 812 F. Supp. 2d 1022, 1024 (N.D. Cal.
2010). Vertical’s attempt to bring in additional claims at this stage of litigation defies at least the
articulated purpose of the infringement contentions to assist in structuring the claim construction
process—long since completed.
Neither Interwoven nor the Court has had an adequate chance to consider these claims. The addition
of these claims is entirely improper and severely prejudicial to Interwoven. Interwoven therefore
requests that the Court strike Vertical’s infringement contentions with respect to the untimely
addition of these existing claims 16, 17, 22, 38, 39, 43, and 44 of the ’744 Patent.
Vertical’s Statement: As Interwoven acknowledged in the parties’ Stipulated Request for Order
Allowing Amendment of Infringement and Invalidity Contentions and Clarifying Timing of Expert
Testimony (Dkt. No. 122), leave to amend was necessary in light of the Court’s Claim Construction
Order, which was entered on December 30, 2011. Vertical agreed and amended its Contentions
accordingly. Indeed, the Patent Local Rules provide that “[a] claim construction by the Court
different from that proposed by the party seeking amendment†constitutes a showing of good cause to
amend. N.D. Cal. P.L.R. 3-6. Further, other Courts have granted parties leave to amend their
infringement contentions after the court has held a claim construction hearing or entered a claim
construction order. Syntrix Biosystems, Inc. v. Illumina, Inc., 2012 U.S. Dist. LEXIS 102944, at **4-
5 (W.D. Wash. July 24, 2012).
Additionally, after further discovery, Vertical concluded that additional claims could be asserted
against the accused system. Courts have found new information yielded during discovery enough to
grant a patentee leave to amend its contentions, even where there is no stipulation or order already on
file. See, e.g.,Vasudevan Software, Inc. v. Int’l Bus. Machines Corp., 2011 U.S. Dist. LEXIS 33132
(N.D. Cal. Feb. 18, 2011); Life Techs. Corp. v. Biosearch Techs., Inc., 2012 U.S. Dist. LEXIS 69976,
at **6-8 (S.D. Cal. May 18, 2012). Because of the Court’s Claim Construction Order and further
discovery relating to the accused system, the addition of existing claims of the ‘744 patent was
necessary.
Further, it would be improper to limit Vertical to its Initial Infringement Contentions because, as
provided above, Vertical would be barred from asserting these claims in a later action. In light of the
Court’s order granting the Parties’ stipulation to amend their Infringement and Invalidity
Contentions, the Court should not strike any additional existing claims of the ‘744 patent.
3. Vertical’s Remaining Proposed Amendments to Already-Asserted Claims of the ’744
Patent
Interwoven’s Statement: Vertical has proposed amendments to already-asserted claims of the ’744
Patent based on information available to it well before the filing of this action, and contain absolutely
no new material despite the pendency of this action (and ongoing discovery) since October 2010.
Interwoven has produced more than 138,000 pages of documents, has made the source code for
Case3:10-cv-04645-RS Document126 Filed09/28/12 Page7 of 11
Honorable Joseph C. Spero
September 28, 2012
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TeamSite available for many months, and yet Vertical has declined to use any of this information in
its amended contentions.
Vertical thus lacks good cause to make amendments to the remaining, already-asserted claims of the
’744 Patent, in view of the Patent Local Rules and the parties’ Stipulated Request for Order Allowing
Amendment of Infringement and Invalidity Contentions and Clarifying Timing of Expert Testimony,
submitted July 24, 2012. Dkt. No. 122 (order granted Dkt. No. 123).
The amendments proposed in Vertical’s Amended Infringement Contentions are all based on the
exact same publicly available source of information upon which Vertical relied to put forth its
original Infringement Contentions on May 26, 2011. In Vertical’s response to Interrogatory No. 3,
Vertical even admitted that it was aware of this same information source, at the latest, by some point
within the time period between March 17, 2009 and August 12, 2010. Def.’s Response to
Interrogatories, pp. 6-7, Sept. 12, 2011.
As discussed above, a patentee “is required to include in its infringement contentions all facts known
to it, including those discovered in its pre-filing inquiry.†Shared Memory Graphics, 812 F. Supp. 2d
at 1024. The infringement contentions are intended to “require the party claiming infringement ‘to
crystallize its theories of the case early in the litigation and to adhere to those theories once
disclosed.’†Id. (quoting Bender v. Advanced Micro Devices, Inc., 2010 WL 363341, at *1 (N.D.
Cal. Feb. 1, 2010); see also LG Elecs. Inc., 211 F.R.D. at 367 (summarizing the general philosophy
behind amending claim charts as being “decidedly conservative, and designed to prevent the ‘shifting
sands’ approach to claim constructionâ€). By relying on the same source of information for these
amendments and failing to include even a single citation to the voluminous evidence produced and
available to Vertical in this litigation, Vertical either neglected to disclose everything known to it in
its original infringement contentions, or did not conduct a diligent investigation of what it already had
available. By proposing these amendments, Vertical has failed to crystallize its theories of the case
or to adhere to those theories.
Vertical’s decision not to rely on other information sources could not have been driven by necessity;
vast quantities of other information have been available to Vertical. During the discovery process,
Interwoven has produced more than 138,000 pages of highly confidential documents, including all
technical documents for TeamSite in Interwoven’s possession. Interwoven has also made its source
code available for inspection since the July 11, 2012 entry of a protective order in this case.
Moreover, above and beyond its obligations in this case, Interwoven made available a copy of the
TeamSite software for inspection starting August 20, 2012. Finally, Interwoven has made a party
witness available for deposition on the technical topics listed in Vertical’s Rule 30(b)(6) notice
served on Interwoven. Vertical has also been aware of the availability of non-party witnesses
potentially possessing technical knowledge.
Vertical elected to ignore these other information sources and go back to the same publicly available
information, on which Vertical had already relied, to amend its infringement contentions. Vertical
did not cite to a single page of Interwoven’s production. Vertical did not review Interwoven’s source
code prior to seeking amendment of its infringement contentions. Vertical did not review the
TeamSite software until after seeking amendment of its infringement contentions. And finally,
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Honorable Joseph C. Spero
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Vertical chose not to take any depositions of witnesses possessing technical information about the
accused products. These actions fly in the face of the Federal Circuit’s guidance on the Northern
District of California’s Patent Local Rules regarding contentions—that the rules “seek to balance the
right to develop new information in discovery with the need for certainty as to the legal theories.â€
O2 Micro Int’l Ltd. v. Monolithic Power Sys., Inc., 467 F.3d 1355, 1366 (Fed. Cir. 2006) (emphasis
added). Vertical has upset this balance by providing no certainty as to its legal theories and by failing
to develop any new information in discovery.
Moreover, in the July 24, 2012 stipulation to permit amendment of contentions, Vertical itself stated
that “amendment is proper because it has not yet reviewed certain highly confidential Interwoven
technical information, including the TeamSite source code, or taken the deposition of any technical
witnesses for Interwoven.†Dkt. No. 122, at 2. As stated above, Vertical has neither inspected source
code nor deposed technical witnesses, and Vertical’s amendments do not refer to any highly
confidential Interwoven technical information, whether or not Vertical has conducted such review.
Therefore, Vertical’s stated bases for amendment either never occurred or are irrelevant to its
proposed amendments.
Vertical’s proposed amendments were not made in good faith, are inconsistent with the principles
guiding patent litigation as set forth in the Patent Local Rules, and contradict Vertical’s own positions
regarding the propriety of amendment. Accordingly, Interwoven requests that the Court strike
Vertical’s infringement contentions with respect to the amendments proposed for the already-asserted
claims of the ’744 Patent.
Vertical’s Statement: Again, Interwoven reads limitations into the Court’s Order granting the parties
leave to amend their respective contentions. The Court did not impose restrictions on the
amendments nor did the parties agree to any such limitations. Vertical amended its contentions with
respect to the already-asserted claims of the ‘744 patent to clarify and add meat to its infringement
position after further discovery and claim construction. Interwoven has not articulated a basis to
prevent Vertical from adding new material to its Amended Infringement Contentions, nor does one
exist.
4. Further Issues Presented By Vertical
Vertical’s Statement:
A. The Issues are not Properly Before the Magistrate Because They are not Discovery
Disputes
The present dispute is not properly before the Magistrate Judge, but rather is a matter that should be
heard by the District Court Judge. The Court’s Order of Reference to Magistrate Judge provides that
“any further discovery disputes in this action [are referred to] a randomly assigned Magistrate Judge
for resolution.†(Dkt. No. 106). The present dispute is outside the scope of referral as it is not a
discovery dispute. Rather, the issue at hand concerns the Patent Office’s Reexamination of the
patents-in-suit and issues of claim construction, including whether the reissued claims of the ‘744
patent are substantially the same as the original claims. Further, this dispute also requires a
Case3:10-cv-04645-RS Document126 Filed09/28/12 Page9 of 11
Honorable Joseph C. Spero
September 28, 2012
10
PALOALTO 141877
potentially dispositive ruling because, as presented above, Vertical will be barred by res judicata from
relitigating any reissued claims against Interwoven in a separate, subsequent infringement action. See
36 U.S.C. (b)(1)(a) (providing that a judge may not designate a magistrate judge to hear and
determine a matter that includes an involuntary dismissal of an action). Therefore, this issue is not
properly in front of Magistrate Spero, and this matter should be referred back to Judge Seeborg.
B. The Issues Presented Require Full Briefing
The parties met and conferred on these issues on September 21, 2012, and Vertical did not receive
even a rough outline from Interwoven until yesterday afternoon. Interwoven had the benefit of
reviewing and responding to Vertical’s arguments prior to filing this letter. Vertical sent Interwoven
its inserts for this letter at 10:30 am PDT under the assumption that Interwoven would merely insert
its arguments into the letter and shortly thereafter the parties would agree to file the letter with the
Court. Instead, Interwoven waited almost five hours after receiving Vertical’s draft before revealing
its arguments to Vertical, which Vertical presumes took into consideration Vertical’s position. At no
point was Vertical given the opportunity to consider Interwoven’s arguments, let alone respond to
them. This is particularly problematic because Interwoven is the party seeking relief from the Court.
The issues presented, especially those implicating res judicata, are so critical that further briefing is
absolutely necessary to allow Vertical the opportunity to consider and specifically respond to
Interwoven’s arguments. Thus, Vertical respectfully requests a formal briefing schedule.
Interwoven also proposes alternative relief in the form of a stay and a supplemental Markman
hearing. Vertical further opposes the extraordinary relief which Interwoven seeks without briefing
and without a hearing. This request for alternative relief is essentially a request to reverse the District
Court's denial of the previous motion to stay. And, for the reasons stated above (relating to the nature
of Vertical's claim amendments in the Patent Office), a supplemental Markman hearing is completely
unnecessary. Interwoven's request is yet another attempt to delay these proceedings. The Patent
Office’s Reexamination of the patents-in-suit is nearly complete and this case should continue as
scheduled. The Patent Office issued a Notice of Intent to Issue Reexamination Certificate on
September 18, 2012. (See Defendant’s Exh. B). Vertical suspects that the Patent Office will be
issuing a Reexamination Certificate shortly. The Patent Office’s issued an Ex Parte Reexamination
Advisory Action on September 13. (Defendant’s Exh. A). This Reexam is close to completion as
evidenced by the Patent Office’s inidcation of the rejected and allowable claims. (See Id. at page 3).
Principal counsel for Vertical will be out of the country between October 3 and October 13, 2012. A
formal briefing schedule or referral back to Judge Seeborg will allow participation of principal
counsel for Vertical who will be out of communication for a majority of that time.
CONCLUSION
If the Court so requests, the parties are happy to provide additional briefing on this issue, and are
available for oral argument if it would be helpful to the Court. The parties and their counsel thank the
Court for its assistance in this matter.
Case3:10-cv-04645-RS Document126 Filed09/28/12 Page10 of 11
Honorable Joseph C. Spero
September 28, 2012
11
PALOALTO 141877
Respectfully submitted,
/s/ Bijal V. Vakil
Bijal V. Vakil
White & Case LLP
3000 El Camino Real, Bldg. 5, 9th Floor
Palo Alto, CA 94306
/s/ Thomas Flynn
Thomas Flynn
White & Case LLP
3000 El Camino Real, Bldg. 5, 9th Floor
Palo Alto, CA 94306
Attorneys for Interwoven, Inc.
/s/ Vasilios D Dossas
Vasilios D. Dossas
Niro, Haller & Niro
181 W. Madison Street Ste. 4600
Chicago, IL 60602
Attorneys for Vertical Computer Systems, Inc.
ATTESTATION CLAUSE
I, Bijal V. Vakil, hereby attest in accordance with General Order No. 45.X.B that Vasilios D.
Dossas, counsel for Vertical Computer Systems, Inc., has provided his concurrence with the
electronic filing of the foregoing letter brief.
Dated: September 28, 2012
/s/ Bijal V. Vakil
Bijal V. Vakil
I donot. I read some of the posts but only those whose authors appear to stick to (mostly) factual material. I like to speculate as much as the next guy but I find it leads to faulty decision making and it's easy enough to come to a faulty conclusion even if you stick to the facts
there were only 4,000 short sales today 9/26/2012.
http://regsho.finra.org/FORFshvol20120926.txt
post 1030 should reference posts 941 and 945 sorry for the mistake
Like I said we already had this discission before Posts 941 and 945. You are free to place whatever level of credibility on the data you wish. The FINRA numbers are accurate
P.S. I incorrectly ref'd post 938 in my last post
We have had this conversation before(post #938). I refer you to the FINRA web site. we don't know if they are failure to deliver. They are actual Short sales recorded on that day
187,850 in short sales on 9/25/2012.
http://regsho.finra.org/FORFshvol20120925.txt
Courtesy of JonnyQwan Raging Bull #334741:
629 and 744 claims side by side...
I finally had a chance to print out the newly amended and approved claims of 629. I also printed out what will be the 744 patent as amended, if Vertical agrees to cancel the rejected claims, in return for the new claims 54-57 being approved.
As I had hoped... The rejected dependant claims of 744 ( mostly listing the type of things that can make up "arbitrary objects"), and that tie to and depend on the Independent claims that describe the framework, things such as text file pointers, binary file pointers, compiled executables, shell commands, remote procedure calls, global variables, cached executables, ETC...ETC...ETC... are ALL covered by the newly approved 629 dependent claims!
Between all the claims (of both 744/629 ) that will emerge from re-examination....... We are covered 100%, and with more descriptive, powerful terms!!!
After finally getting some definite claims from the Examiner and being able to print them all out and laying them side by side... The answer is CLEAR... we lost NOTHING in the reexamination, and we are in better shape than ever to finally be in a position of negotiating power and to demand our due!
Raging bull # 334565 Steve Daly:
No word yet, but here's the USPTO Gazette link where the re-exam results will be posted today for 744 & 629:
http://www.uspto.gov/news/og/og_2012.jsp
They publish every Tuesday - will probably come out this morning before market opens.
Should be a great day for us.
Raging bull # 334204, JonnyQwan what a find:
More on intervening rights....
Great article about the both types of intervening rights here:
http://www.mofo.com/pubs/xpqPublicationDetail.aspx?xpST=PubDetail&pub=8060
"In response to a request by either a patentee or another interested party, the USPTO will reexamine an issued patent in light of prior art that creates a “substantial new question of patentability†compared to issues considered during the original examination. Accused infringers in patent litigation are increasingly requesting reexaminations of asserted patents, recognizing reexamination as a relatively low-cost, potentially high-impact adjunct to a lawsuit. A similar procedure, “reissue,†allows a patentee to apply for a reissued patent based upon an error made during the original prosecution, including the patentee claiming more or less that he or she had a right to claim.
Reexamination may result in changes to the claims, but may not broaden claim scope. By contrast, a reissue allows the patentee to not only narrow claims (as in reexamination), but to broaden claims as well if the reissue application is filed within two years of the issue date of the original patent. Under either post-issuance procedure, a claim amendment [1] may impose an undue hardship on an infringer of the reexamined or reissued claim where the infringer relied upon the scope of the original claim in attempting to avoid infringement of the original patent. To account for this hardship, “absolute†and “equitable†intervening rights are available to protect infringers from liability where claims are substantially changed during reexamination or reissue.[2]
Absolute Intervening Rights: Protection from past Liability And Damages
“Absolute†intervening rights provide an accused infringer the right to use or sell a product that was made, used, or purchased before the grant of the reexamination certificate, as long as such activity did not infringe a claim of the reexamined patent that was in the original patent. See 35 U.S.C. §§ 252, 307(b). If a claim is amended during reexamination and the amendment substantively changed the claim, then absolute intervening rights apply. An absolute intervening right only protects products that have already been made when the reexamination certificate is granted, and does not extend to infringing processes or methods. Thus, an infringer may sell off existing inventory of a product that infringes the reexamined patent claims without incurring liability for past damages.
Of course, if the original claims survive reexamination intact, then a product that infringes a reexamined patent claim necessarily infringed a claim of the original patent. In that event, damages are generally measured from the issue date of the original patent, with the infringer liable for damages incurred both before and after reexamination.
Equitable Intervening Rights: Protection from Future Liability And Damages
Absolute intervening rights do not apply to infringing activity that occurs after the reexamination certificate is issued. However, “equitable†intervening rights may protect alleged infringers from liability for future infringing conduct.
Equitable intervening rights may provide for the continued manufacture, use, or sale of additional products covered by the reexamined patent when the defendant made, purchased, or used identical products, or made substantial preparations to make, use, or sell identical products, before the date of issuance of the reexamined claims. See 35 U.S.C. §§ 252, 307(b). Equitable intervening rights are potentially much broader than absolute intervening rights, but the former are discretionary. A court may provide for equitable intervening rights to protect investments made before the grant of a reexamination certificate, including the continuation of infringing activity after such time.
The application of equitable intervening rights to reexamination and narrowing reissues is not clear. Equitable rights are more common in cases where claims have been broadened during reissue. In such cases, an infringer of the reissued claim may not have infringed the narrower original claim, leading to an unfair result if the infringer were held liable from the time of the original claim’s issuance. The same inequity arguably does not arise when an amendment or added claim results in a narrower claim than in the original patent, as would be the case in reexamination.[3] Thus, a court may be reluctant to grant equitable intervening rights for an activity that infringes reexamined claims.
Fashioning Equitable Remedies
In Seattle Box,[4]a case involving a reissued patent, the Federal Circuit outlined three basic options that are available to fashion a remedy once the doctrine of equitable intervening rights has been raised. The court may (1) confine the infringer to the use of those infringing items already in existence; (2) permit the infringer to continue in business under conditions that limit the amount, type, or geographical location of its activities; or (3) permit the infringer to continue in business unconditionally.
Generally, the goal of a court is to craft a remedy that would allow the infringing party to recoup its investment. As summarized in a district court decision,[5]various factors may be considered in determining whether equitable intervening rights are appropriate, including whether:
Substantial preparation was made before the reissue;
The infringer continued manufacturing before reissue on advice of its patent counsel;
There were existing orders or contracts;
Noninfringing goods can be manufactured from the inventory used to manufacture the infringing product and the cost of conversion;
There was a long period of sales before the patent reissued for which damages cannot be assessed;
The infringer has made profits sufficient to cover its investment; and
The claims have been narrowed or broadened by amendment.
Conclusion
A patentee may amend claims or add new, narrower claims to avoid prior art raised during reexamination, yet still cover the accused product. Even if reexamination does not result in invalidation of all infringed claims, intervening rights may provide at least some protection to an accused infringer with respect to added or amended claims. Moreover, even if equitable intervening rights do not apply, absolute intervening rights may be valuable, especially for cutting off past damages on a patent that is nearing expiration.
Any claim-narrowing must be supported by subject matter disclosed in the patent specification. With this in mind and an understanding of intervening rights, experienced patent counsel can consider potential amendments that might be made during reexamination, and assess whether and to what extent intervening rights may apply.
--------------------------------------------------------------------------------
Footnotes
[1] This discussion of amended claims in reexamination also generally applies to new claims added during reexamination, which would be narrower in scope than any original claim. An amended or new claim is impermissibly broad if it covers any subject matter that would not have infringed the original patent (again noting the exception for broadening reissues filed within two years of a patent’s issuance).
[2] Because of the similarities between reexamination and reissue proceedings, similar rules apply. While this article focuses on reexamination, the law of reissue will be referenced where that law is more well-defined.
[3] However, one can imagine that even a narrowed claim may impose an undue hardship on an infringer. For example, the infringer could have manufactured a product that infringed the original patent in reliance upon an invalidity opinion finding the relatively broader claims of the original patent to be invalid over prior art; the narrowing during reexamination or reissue may avoid such prior art."
Sounds to me it is likely that all accused infringement, both prior to reexamination and after, will apply in the current litigation, based on the admendments that were approved, and the fact that some claims,(remember, it only takes one!) are emerging from reexamination, approved with their originally patented claim language.
The claims that were amended were only slightly narrowed in scope, and it seems unlikely that the changes in the claim language will result in any of the 3 accused infringing companies, suddenly having those products found to no longer infring VCSY's freshly reexamined and approved patents.
It just gets better and better to be a VCSY shareholder!!!!!!!!
cautiously optimistic
Raging bull, #333522:
USPTO reasons they approved 629:
http://portal.uspto.gov/external/PA_PeaiPair/view/BrowsePdfServlet?objectId=H7AEFEQTPXXIFW4&lang=DINO
1. If that doesn't work, go to http://portal.uspto.gov/external/portal/pair
2. type in the 2 words they ask for
3. for the application control number, put in this number: 90/009,983
4. click on: Notice of Intent to Issue a Reexam Certificate (11 pages)
RLHMAN is right it is still unclear exactly what all this means
courtesy of JonnyQwan Raging Bull #333320:
" 629 reexam TERMINATED!!!!!!
In the status section now: Reexam Terminated -- Notice of Intent to Issue a Reexamination Certificate Mailed
Woo Hoo!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! "
raging Bull #333243:
Latest USPTO Info:
Transaction History
Date Transaction Description
09-18-2012 RX - Mail Notice of Intent to Issue a Reexam Certificate
09-18-2012 RX - Ex Parte Notice of Intent to Issue a Reexam Certificate
09-13-2012 Paralegal Reexam Review Complete
09-10-2012 ReExam Litigation Found
Here's some good info on what the Reexam Certificate means:
http://patentlibrarian.blogspot.com/2009/01/locating-re-examination-certificates.html
Courtesy fo JonnyQwan Raging Bull #332710:
The examiner's response:
THE PROPOSED RESPONSE FILED 21 August 2012 FAILS TO OVERCOME ALL OF THE REJECTIONS IN THE
FINAL REJECTION MAILED 21 June 2012.
1. E Unless a timely appeal is ñled, or other appropriate action by the patent owner is taken to overcome aII of the
outstanding rejection(s), this prosecution of the present ex parte reexamination proceeding WILL BE
TERMINATED and a Notice of Intent to Issue Ex Parte Reexamination Certiñcate will be mailed in due course.
Any ñnally rejected claimsI or claims objected to, will be CANCELLED.
THE PERIOD FOR RESPONSE IS EXTENDED TO RUN 5 MONTHS FROM THE MAILING DATE OF THE FINAL REJECTION. Extensions of
time are governed by 37 CFR 1.550(c).
NOTICE OF APPEAL
2. D An Appeal Brief is due two months from the date of the Notice of Appeal filed on to avoid dismissal of the
appeal. See 37 CFR 41.37(a). Extensions of time are governed by 37 CFR 1.550(c). See 37 CFR 41.37(e).
AMENDMENTS
3. IXI The proposed amendment(s) tiled after a final action, but prior to the date of filing a brief, will not be entered
because:
(a) El They raise new issues that would require further consideration and/or search (see NOTE below);
(b) E They raise the issue of new matter (see NOTE below);
(c) E They are not deemed to place the proceeding in better form for appeal by materially reducing or simplifying the
issues for appeal; and/or
(d) D They present additional claims without canceling a corresponding number of ñnally rejected claims.
NOTEI (See 37 CFR 1.116 and 41.33(a)).
4. E Patent owner‘s proposed response f|Ied 21 August 2012 has overcome the following rejection(s):prior art rejections of
claims 22 and 44
5. IX! The proposed new or amended c|aim(s) 54-57 would be allowable if submitted in a separate, timely filed amendment canceling the non-allowable
6. IXI For purposes of appeal, the proposed amendment(s) will not be entered, or b)El will be entered and an explanation of how the new or amended claim(s) would be rejected is provided below or appended.
The status of the claim(s) is (or will be) as follows:
CIaim(s) patentable and/or conflrmedz 6,8,19,22.30.32,41,44,50 and.51
C|aim(s) objected to:
C|aim(s) rejected: 1-5, 7.9-11,18,21,23-29,31,33,40.45-49,52 and 53
C|aim(s) not subject to reexamination: 12-17, 20, 34-39, 42, and 43
Read the claims!!!!!
The allowance of claims 54-57 as described, will more than cover what will be removed!
not easy to say,but generally speaking You win the suit( i.e. LG is found guilty of infringment) the price should go up. However as Apple V. Samsung shows it's not so clear cut
Courtesy of JonnyQwan Raging Bull # 332431
USPTO action on the 629 reexam...
90/009,983 SYSTEM AND METHOD FOR GENERATING WEB SITES IN AN ARBITRARY OBJECT FRAMEWORK INWO0062REEX
Transaction History
Date Transaction Description
09-10-2012 ReExam Litigation Found
09-10-2012 Reexam Litigation Search Conducted
08-21-2012 Affidavit(s), Declaration(s) and/or Exhibit(s) Filed
08-21-2012 Response after Non-Final Action
Well, we see some activity....
Nothing more than the stated motion to sever and move.
(that's all I have)
courtesy of JonnyQwan, Raging Bull #331852:
New Pacer out of San Francisco......
FOR THE NORTHERN DISTRICT OF CALIFORNIA
INTERWOVEN, INC.,
Plaintiff,
v.
VERTICAL COMPUTER SYSTEMS, INC.,
Defendant.
Case No. 3:10-cv-04645-RS
STIPULATED REQUEST FOR ORDER CHANGING TIME AND [PROPOSED] ORDER; DECLARATION OF VASILIOS D. DOSSAS IN SUPPORT
JURY TRIAL DEMANDED
Case3:10-cv-04645-RS Document124 Filed09/07/12 Page1 of 8
STIPULATED REQUEST FOR ORDER CHANGING TIME
CASE NO. 3:10-CV-04645-RS - 2 -
STIPULATED REQEUST FOR ORDER CHANGING TIME
Pursuant to Local Rule 6-2 of the Local Rules for the Northern District of California, Plaintiff, Interwoven, Inc., ("Interwoven") and Defendant, Vertical Computer Systems, Inc. ("Vertical"), by and through their respective counsel of record, jointly request the Court for an extension of time for the deadline for the completion of fact discovery from October 12, 2012 to October 26, 2012. This requested extension of time does not impact any other dates in the Court’s Case Management Schedule (which will remain as set forth below). See Dkt. Nos. 117, 123.
• On or before December 7, 2012, the Parties shall disclose expert testimony and reports on issues for which the Parties bear the burden of proof in accordance with Federal Rule of Civil Procedure 26(a)(2).
• On or before January 18, 2013, the Parties shall disclose expert testimony and reports on issues for which the Parties do not bear the burden of proof in accordance with Federal Rule of Civil Procedure 26(a)(2).
• On or before February 15, 2013, all discovery of expert witnesses pursuant to Federal Rule of Civil Procedure 26(b)(4) shall be completed.
The parties hereby jointly request the Court for a brief extension for the deadline for the completion of fact discovery because principal counsel for Vertical will be out of the country from October 3, 2012 through October 13, 2012, a time period that includes the last eleven days of fact discovery.1 This short continuance will provide additional time to complete fact
1 Vertical also seeks an extension of fact discovery based on difficulties in scheduling depositions. Vertical has factual support for this additional ground, but has withheld presenting it in light of the agreement reached on the extension. Interwoven disagrees with the additional ground and believes the parties would have been able to finish discovery by the deadline but for Counsel for Vertical’s existing travel plans. Thus, Interwoven does not stipulate to the alleged scheduling difficulties as a basis for the requested extension. However, Interwoven has agreed to this request for an extension out of professional courtesy and in the spirit of cooperation.
Case3:10-cv-04645-RS Document124 Filed09/07/12 Page2 of 8
STIPULATED REQUEST FOR ORDER CHANGING TIME
CASE NO. 3:10-CV-04645-RS - 3 -
discovery. The Declaration of Vasilios D. Dossas provides the information required by Civil L.R. 6-2(a)(1)-(3). The parties' stipulated request herein is not made for purposes of delay or harassment, but is based in good faith upon the grounds stated above. For these reasons, the parties respectfully request an Order from this Court changing the date for the parties' deadline for the completion of fact discovery from October 12, 2012 to October 26, 2012.
Date: September 7, 2012
Respectfully submitted,
/s/ Vasilios D. Dossas MARK V. ISOLA (SBN 154614) misola@rehonroberts.com REHON &ROBERTS, APC 830 The Alameda San Jose, CA 95126 Telephone: (408) 494-0900 VASILIOS D. DOSSAS (Pro Hac Vice) dossas@nshn.com NIRO, HALLER &NIRO 181 West Madison, Suite 4600 Chicago, IL 60602-4515 Telephone: (312) 236-0733 Attorneys for Vertical Computer Systems, Inc.
Date: September 7, 2012
Respectfully submitted, /s/ Thomas C. Flynn
BIJAL V. VAKIL (Cal. Bar No. 192878) bvakil@whitecase.com NOAH A. BRUMFIELD (Cal. Bar No. 203653) nbrumfield@whitecase.com JENNIFER P. GOSSAIN (Cal. Bar No. 254174) jgossain@whitecase.com THOMAS C. FLYNN (Cal. Bar. No. 257945) tflynn@whitecase.com WHITE &CASE LLP 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, CA 94306 Telephone: (650) 213-0300 Attorneys for Plaintiff, Interwoven, Inc.
Case3:10-cv-04645-RS Document124 Filed09/07/12 Page3 of 8
STIPULATED REQUEST FOR ORDER CHANGING TIME
CASE NO. 3:10-CV-04645-RS - 1 -
The Court finds that the Stipulated Request for an Order Changing Time is well taken and should be GRANTED.
PURSUANT TO THE STIPULATION, IT IS SO ORDERED.
Dated: _________________________
______________________________ Honorable Richard Seeborg United States District Court Judge
Case3:10-cv-04645-RS Document124 Filed09/07/12 Page4 of 8
ATTESTATION
CASE NO. 3:10-CV-04645-RS - 1 -
ATTESTATION CLAUSE
I, Vasilios D. Dossas, hereby attest in accordance with General Order No. 45.X.B that Thomas C. Flynn, counsel for Interwoven, Inc., has provided his concurrence with the electronic filing of the foregoing document entitled STIPULATED REQUEST FOR ORDER CHANGING TIME AND [PROPOSED] ORDER; DECLARATION OF VASILIOS D. DOSSAS IN SUPPORT.
Dated: September 7, 2012
By: /s/ Vasilios D. Dossas Vasilios D. Dossas
Case3:10-cv-04645-RS Document124 Filed09/07/12 Page5 of 8
DOSSAS DECLARATION IN SUPPORT OF STIPULATED REQUEST
FOR ORDER CHANGING TIME
CASE NO. 3:10-CV-04645-RS
MARK V. ISOLA (SBN 154614)
misola@rehonroberts.com
REHON &ROBERTS, APC
830 The Alameda
San Jose, CA 95126
Telephone: (408) 494-0900
Facsimile: (408) 494-0909
VASILIOS D. DOSSAS (Pro Hac Vice)
dossas@nshn.com
NIRO, HALLER &NIRO
181 West Madison, Suite 4600
Chicago, IL 60602-4515
Telephone: (312) 236-0733
Facsimile: (312) 236-3137
Attorneys for Vertical Computer Systems, Inc.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
INTERWOVEN, INC.,
Plaintiff,
v.
VERTICAL COMPUTER SYSTEMS, INC.,
Defendant.
Case No. 3:10-cv-04645-RS
DECLARATION OF VASILIOS D. DOSSAS IN SUPPORT OF STIPULATED REQUEST FOR ORDER CHANGING TIME
JURY TRIAL DEMANDED
I Vasilios D. Dossas, declare as follows:
1. I am a partner at the law firm of Niro, Haller & Niro, counsel of record for Defendant, Vertical Computer Systems, Inc. ("Vertical") in this matter. I make declaration in support of the parties' Stipulated Request for an Order Changing Time. I make the following declaration based upon my personal knowledge, and could and would testify thereto under oath if called upon to do so.
2. The parties now seek to an extension of time for the deadline of completion of fact discovery from October 12, 2012 to October 26, 2012.
Case3:10-cv-04645-RS Document124 Filed09/07/12 Page6 of 8
DOSSAS DECLARATION IN SUPPORT OF STIPULATED REQUEST
FOR ORDER CHANGING TIME
CASE NO. 3:10-CV-04645-RS
- 2 -
3. This requested extension of time does not impact any other dates relating to the Case Management Schedule as set by the Court on May 25, 2012 and July 24, 2012. See Dkt. Nos. 117, 123. The remaining scheduled dates are set forth below:
• On or before December 7, 2012, the Parties shall disclose expert testimony and reports on issues for which the Parties bear the burden of proof in accordance with Federal Rule of Civil Procedure 26(a)(2).
• On or before January 18, 2013, the Parties shall disclose expert testimony and reports on issues for which the Parties do not bear the burden of proof in accordance with Federal Rule of Civil Procedure 26(a)(2).
• On or before February 15, 2013, all discovery of expert witnesses pursuant to Federal Rule of Civil Procedure 26(b)(4) shall be completed.
4. The parties jointly request the foregoing time modification because of principal counsel for Vertical will be out of the country from October 3, 2012 through October 13, 2012. Vertical further requests the foregoing time modification because of difficulties in scheduling depositions. The parties have previously stipulated to the following extensions of time:
• To extend the hearing date for the Interwoven’s motion to enjoin Vertical Computer Systems, Inc. (“Verticalâ€) from pursuing duplicative litigation and Vertical’s motion to transfer venue, or in the alternative, dismiss from January 13, 2011 to January 20, 2011. See Dkt. 20.
• To continue the Case Management Conference (“CMCâ€) from April 14, 2011 to April 28, 2011. See Dkt. 53.
• To continue the date for the parties' filing of their joint claim construction and prehearing statement from September 12, 2011 to October 10, 2011. See Dkt. 73.
Case3:10-cv-04645-RS Document124 Filed09/07/12 Page7 of 8
DOSSAS DECLARATION IN SUPPORT OF STIPULATED REQUEST
FOR ORDER CHANGING TIME
CASE NO. 3:10-CV-04645-RS
- 3 -
• To file amended contentions - August 31, 2012 for Vertical to serve its amended Infringement Contentions; and September 15, 2012 for Interwoven to serve its amended Invalidity Contentions. See Dkt. 123.
5. The parties’ stipulated request herein is not made for purposes of delay or harassment, but is based in good faith upon the grounds stated above.
6. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
Dated: September 7, 2012
By: /s/ Vasilios D. Dossas Vasilios D. Dossas
Case3:10-cv-04645-RS Document124 Filed09/07/12 Page8 of 8
" From neoware on Yahoo
'In an update posted on LinkedIn, Al Sabawi, a former I.B.M. executive and founder of Quantopix, a software company, said Samsung deserved to lose.
To all the lazy copycats out there who think cutting and pasting is an intellectual achievement, that hard work, sweat and tears don't matter, that ideas, designs, and innovations can be stolen willy-nilly with no consequences: This is to you.
Paul O'Brien, founder of MoDaCo, a site focused on Windows smartphones, said this sounded like good news for Microsoft and its Windows phone platform.
Hear that noise? That's the sound of Android manufacturers ringing Microsoft right now.
Robert Barr, executive director of University of California-Berkeley's Center for Law and Technology, spelled out what this would mean for the tech industry as a whole. It's going to make it very difficult for not only Samsung but for other companies to mimic the Apple products:
Each of the patents cover a particular feature of the iPhone and the iPad. You can still make a smartphone, like the Microsoft Windows phone made by Nokia. It has a different look than the iPhone, different appearance and different features. That would be an example that is unaffected by this. The important thing here is that Apple's patents were upheld as valid. Other companies are going to have to avoid the patents or license them. Even though this jury upheld them, other companies still get a shot. They can come in with new evidence and attack them. You have to have new reasons and new evidence.
The amount of damages is extraordinary. A billion dollars in damages is extra. It's one of the biggest patent verdicts ever. That's a huge amount of damages. And the judge has to now decide whether to increase that for the wilfulness. And the judge could increase that as much as triple. The judge has to still decide if there will be an injunction against future sales or a recall of product.
Even though people can come back and attack them, they are going to need new evidence and it's going to be difficult.'
thanks to the reporter... "
Courtesy of Vertical 17 Raging Bull #329682:
" moonpunk --- good news; the arguments are now posted on the patent pair site for the 744 re-exam. It looks like the interview payed off as we added 4 new claims. Please take a read and provide your perspective. Appears to be a powerful and compelling filing. Thanks!
_____________________________________________________________________
90 009983 for 744 (remarks are posted from Attorney Stone)
90 009982 for 629 (comments not up yet) "
Courtesy of JonnyQwan Raging bull # 329620:
" LG response on Pacer.....
IMO, very weak response. They will not overcome the first to file precedence, and very strange that neither party mentions that they had supposedly mutually agreed to sever and transfer under seal, just a few weeks ago???? the pressure must be building!!!
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VERTICAL COMPUTER SYSTEMS, INC.
Plaintiff,
v.
LG ELECTRONICS MOBILECOMM U.S.A.,
INC., LG ELECTRONICS, INC., SAMSUNG
ELECTRONICS CO., LTD., SAMSUNG
ELECTRONICS AMERICA, INC.
Defendants.
CIVIL ACTION NO. 2:10-CV-490
JURY TRIAL
REPLY TO VERTICAL’S RESPONSE IN OPPOSITION TO LG ELECTRONICS
MOBILECOMM U.S.A., INC. AND LGE ELECTRONICS INC.’S MOTION TO SEVER
AND TRANSFER CLAIMS TO THE U.S. DISTRICT COURT FOR THE DISTRICT OF
NEW JERSEY OR IN THE NORTHER DISTRICT OF CALIFORNIA
Vertical spends most of its Opposition on issues that have nothing to do with LGE or its
Motion to Sever and Transfer. But Vertical does not dispute key facts that are central to LGE’s
Motion. LGE’s Motion to Sever and Transfer should be GRANTED.
I. LGE Is Improperly Joined To Samsung And Should Be Severed.
Vertical fails to meet the “same transaction or occurrence†test to properly join LGE with
Samsung. Fed. R. Civ. P. 20(a); In re EMC, 677 F.3d 1351, 1356 (Fed. Cir. 2012). It is true that
both LGE and Samsung accused products run Android software. However, Vertical does not
dispute that LGE and Samsung are independent companies—in fact, fierce competitors—that
develop, design, market, and sell their respective products independently. Merely “alleging a
common manufacturer, product type, and that they both infringe, along with the same patent is
not enough to support joinder where defendants are unrelated companies, selling different
Case 2:10-cv-00490-JRG Document 92 Filed 08/21/12 Page 1 of 7 PageID #: 1463
2
products.†In re EMC, 677 F.3d at 1359 (citing Sorensen v. DMG Holdings, Inc., No. 08-cv-559,
2010 WL 4909615, at *1 (S.D.Cal. Nov. 24, 2010)).
Vertical’s sole basis for infringement against both LGE and Samsung relies on a
hypothetical example from a book about the Android Operating System. When the program is
compiled and then executed, however, errors occur (“run-time errorsâ€), contradicting Vertical’s
assertion that the hypothetical example ‘runs fine.’ See Ex. A, p. 11; Ex. B, p. 9. Vertical’s
Interrogatories in fact ask about modifications made to the Android OS -- implying that Vertical
is aware that the system running on LG products may not, in fact, be the same as Samsung’s. Ex.
C, Nos. 3-5. Vertical has no facts to show the products are indeed the same.
II. This Case Should Be Transferred To the District of New Jersey Or, In the
Alternative, To The Northern District of California.
a. Vertical Does Not Dispute That LGE Has No Relevant Witnesses Or
Evidence In The Eastern District Of Texas
Vertical does not dispute the facts that LGE has no operations, no relevant witnesses,
and no relevant evidence in the Eastern District of Texas. Nor does Vertical dispute that LGE’s
U.S. mobile phone business is headquartered in New Jersey and that the knowledgeable
witnesses and documents concerning LGE’s U.S. marketing and sales of its accused mobile
phone products are located in New Jersey. Despite its argument that these witnesses are not
relevant, Vertical has, in fact, asked for discovery on the marketing and sales of LGE’s accused
products. See, e.g., Ex. D, Nos. 10-17, 19, 27. This evidence, and the witnesses that will testify
about it, are in New Jersey.
Nor is the Eastern District of Texas more convenient than the Northern District of
California. Vertical acknowledges that LGE’s Android team is located in San Jose, CA and
Case 2:10-cv-00490-JRG Document 92 Filed 08/21/12 Page 2 of 7 PageID #: 1464
3
works with Google at its Mountain View, CA headquarters. Relevant witnesses and evidence
concerning LGE’s implementation of Android for the U.S. market are located in California.
b. Vertical Does Not Properly Apply The § 1404 Transfer Factors
The proper inquiry for § 1404 transfer is well-established. The threshold question is
“whether the judicial district to which transfer is sought would have been a district in which the
claim could have been filed.†In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004). There is
no dispute that Vertical’s claims against LGE could have been brought in New Jersey or the
Northern District of California.
When the transferee district is proper, the court must then consider the private and public
interest factors relating to the convenience of parties and witnesses as well as the interests of
particular venues in hearing the case. See e.g., In re Nintendo Co., Ltd., 589 F.3d 1194, 1197–98
(Fed. Cir. 2009). LGE applied each of these factors in its Opening Brief and the weight of the
analysis favors transfer. But instead of offering the Court a competing application of these
factors, Vertical crafts its own legal inquiry for transfer. Vertical’s analysis is inapplicable and,
in any event, unpersuasive. LGE addresses Vertical’s arguments below.
1. The First-To-File Doctrine Is Inapplicable Here
Vertical proclaims it has a “‘presumptive right’ as the first litigant to file, vis-à -vis LGâ€
to bring its case in the Eastern District of Texas. Opp. at 12. However, the first-to-file doctrine
under §1404 is inapplicable. See Abercrombie & Fitch Co. v. Ace European Group, Ltd., No.
2:11-cv-1114, 2012 WL 2995171, at *3 (S.D. Ohio Jul.23, 2012)(“The first-filed rule does not
supersede the inquiry into the balance of convenience under § 1404(a)â€).
Case 2:10-cv-00490-JRG Document 92 Filed 08/21/12 Page 3 of 7 PageID #: 1465
4
2. Vertical’s Judicial Economy Argument Improperly Depends On Joinder
Vertical claims that judicial economy would be served by keeping LGE in the Eastern
District of Texas and joined with Samsung in this action. However, proper joinder is a separate
inquiry from the judicial economy needed to justify transfer. And LGE is not properly joined
with Samsung.
Moreover, to date, this Court has had little to no substantive involvement in this action.
It is undisputed that this Court is unlikely to have historical knowledge about the patents or the
technology. Meanwhile, the Northern District of California is intimately familiar with the
patents and the technology, having already issued a Markman order1 in the Interwoven case that
this Court severed and transferred in May 2011. Judicial economy would be served by a transfer
to the Northern District of California.2
3. Vertical’s Claims Of “Convenience†Are Limited To Its Own Witnesses
The private interest factors of the parties must take into account (1) the relative ease of
access to sources of proof; (2) the availability of compulsory process to secure the attendance of
witnesses; (3) the cost of attendance for willing witnesses.
Vertical attempts to defend the “convenience†of this forum by relying on the self-serving
“convenience†of its own witnesses. Even so, and as noted by LGE in its Opening Brief, no
relevant evidence or witnesses are within the subpoena power of this Court. Vertical admits that
its headquarters are located 125 miles from this Court, which is outside of the 100-mile subpoena
1 Chief Judge Davis’ recent opinion in Norman IP Holdings LLC v. Lexmark International, Inc.,
6:11-CV-495 (E.D. Tex. August 10, 2012) is not applicable since at least one Markman has
occurred in another jurisdiction, which is one of the alternative places to which transfer is sought.
But regardless of where the claim construction order issued, the existence of a prior claim
construction order anywhere moots the need for this Court to defer transfer so that its claim
construction order can be of use to the transferee court (whether adopted by it or not).
2 As LGE stated in its Opening Brief, the judicial economy inquiry is neutral with respect to
transfer to New Jersey.
Case 2:10-cv-00490-JRG Document 92 Filed 08/21/12 Page 4 of 7 PageID #: 1466
5
power of this Court. Opp. at 14. Moreover, Vertical’s chief technical officer Mr. Valdetaro and
chief executive officer Mr. Wade reside in Dallas, Texas, which is not in the Eastern District of
Texas. Id. The inventor, described by Vertical as “the most important witness†resides in Austin,
Texas, which is also not in the Eastern District of Texas. Id. at 14-15. While Vertical’s chief
financial officer purportedly resides in this District, Vertical has not identified this individual in
its Initial Disclosures as a person likely to have relevant knowledge in this litigation. None of
this supposed “convenience†outweighs the fact that no evidence pertaining to LGE’s U.S.
mobile phone business is located in the Eastern District of Texas. Instead, this evidence, which
Vertical has requested in discovery, (see Ex. C, Nos. 3-5, 9; Ex. D, Nos. 10-17, 19, 27), resides
in New Jersey and in California. The private interest factors therefore favor transfer when the
convenience of LGE’s evidence and witnesses is considered.
Finally, Vertical claims that the Eastern District of Texas is convenient for LGE because
it has availed itself in this District by filing its own lawsuits here. Opp. at 15. Vertical appears
to be confusing personal jurisdiction over LGE for the convenience of the LGE’s witnesses and
evidence in this case. In addition, this argument is misguided because a convenience inquiry in
other cases, if one was even raised as an issue, is irrelevant to the convenience inquiry here.
CONCLUSION
Given the above facts and arguments, LGE’s respectfully the requests that this Court
grant LGE’s Motion to Sever and Transfer.
Case 2:10-cv-00490-JRG Document 92 Filed 08/21/12 Page 5 of 7 PageID #: 1467
6
Dated: August 21, 2012 Respectfully submitted,
FISH & RICHARDSON P.C.
/s/ David J. Healey
David J. Healey
State Bar No. 09327980
Fish & Richardson P.C.
1221 McKinney, Suite 2800
Houston, TX 77010
713-654-5300 – Telephone
713-652-0109 – Facsimile
healey@fr.com
OF COUNSEL:
Kevin Su
MA Bar No. 663726
Fish & Richardson P.C.
One Marina Park Drive
Boston, MA 02210-1878
617-542-5070 – Telephone
617-542-8906 – Facsimile
su@fr.com
Michael J. McKeon
Fish & Richardson P.C.
1425 K Street, NW, 11th Floor
Washington, DC 20005
202-783-5070 – Telephone
202-783-2331 – Facsimile
mckeon@fr.com
Counsel for Defendants
LG ELECTRONICS MOBILECOMM
U.S.A., INC. AND LG ELECTRONICS, "
new Pacer info from texas "JonnyQwan #329489:
Today on Pacer... from Texas...
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VERTICAL COMPUTER SYSTEMS, INC.
Plaintiff,
v.
LG ELECTRONICS MOBILECOMM U.S.A., INC.,
LG ELECTRONICS, INC., SAMSUNG
ELECTRONICS CO., LTD., SAMSUNG
ELECTRONICS AMERICA, INC.
Defendants.
CIVIL ACTION NO. 2:10-CV-490
JURY
ORDER GRANTING DEFENDANT LG ELECTRONICS MOBILECOMM U.S.A,
INC. AND LG ELECTRONICS, INC.’S UNOPPOSED MOTION FOR EXTENSION OF
TIME TO FILE REPLY TO PLAINTIFF VERTICAL’S RESPONSE IN OPPOSITION
TO LGE’S MOTION TO SEVER AND TRANSFER
CAME ON to be heard the LG Electronics Mobilecomm U.S.A., Inc. and LG
Electronics, Inc.’s (“LGEâ€) Unopposed Motion for Extension of Time to File Its Reply to
Plaintiff Vertical’s Response in Opposition to LGE’s Motion to Sever and Transfer, and the
Court, after review of the subject Motion, and the entire record in this Cause, and noting that said
Motion is unopposed, it is hereby ORDERED that said Motion shall be in all things GRANTED;
and it is
FURTHER ORDERED that the deadline for Defendant LGE to file its Reply to
Vertical’s Response in Opposition to LGE’s Motion to Sever and Transfer is extended to and
including August 23, 2012.
Well, Judge Gilstrap is still onboard to hear arguments, ( or sign a settlement agreement ) in Texas. I had wondered if he would balk, and say that he had already transferred the dispute out of the East Texas District. Hoping for good news soon.
Courtesy of JonnyQwan Raging Bull #329008:
Brand new Pacer from Texas.....
I'm betting this "unopposed" request for additional is to facilitate a settlement in the next few days!
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VERTICAL COMPUTER SYSTEMS, INC.
Plaintiff,
v.
LG ELECTRONICS MOBILECOMM U.S.A.,
INC., LG ELECTRONICS, INC., SAMSUNG
ELECTRONICS CO., LTD., SAMSUNG
ELECTRONICS AMERICA, INC.
Defendants.
CIVIL ACTION NO. 2:10-CV-490
JURY
DEFENDANT LG ELECTRONICS MOBILECOMM U.S.A., INC. and LG
ELECTRONICS, INC.’S UNOPPOSED MOTION FOR EXTENSION OF TIME TO
FILE ITS REPLY TO PLAINTIFF VERTICAL’S RESPONSE IN OPPOSITION TO
LGE’S MOTION TO SEVER AND TRANSFER
Defendants LG Electronics Mobilecomm U.S.A, Inc. and LG Electronics, Inc. (together,
“LGEâ€) file this unopposed motion for extension of time to file its reply to Plaintiff Vertical’s
Response in Opposition to LGE’s Motion to Sever and Transfer (“Reply to Vertical’s Response
in Oppositionâ€). LGE respectfully requests a short extension of time to and including August 23,
2012, for its Reply to Vertical’s Response in Opposition. LGE conferred with counsel for
Plaintiff, and Plaintiff has agreed to the requested extension of time.
This is the first motion for extension of time for this reply. It is made due to pressing
commitments of counsel and not for the purpose of delay. The extension is only for three
business days after the original due date (August 20, 2012), and the reply will be filed sooner if
practical to do so.
Case 2:10-cv-00490-JRG Document 89 Filed 08/16/12 Page 1 of 3 PageID #: 1455
WHEREFORE, LGE respectfully moves the Court to extend the time for LGE to file its
Reply to Plaintiff Vertical’s Response in Opposition to LGE’s Motion to Sever and Transfer to
and including August 23, 2012.
Dated: August 16, 2012 Respectfully submitted,
By: /s/ David J. Healey
David J. Healey
State Bar No. 09327980
Fish & Richardson P.C.
1221 McKinney, Suite 2800
Houston, TX 77010
713-654-5300 – Telephone
713-652-0109 – Facsimile
healey@fr.com
OF COUNSEL:
Kevin Su
MA Bar No. 663726
Fish & Richardson P.C.
One Marina Park Drive
Boston, MA 02210-1878
617-542-5070 – Telephone
617-542-8906 – Facsimile
su@fr.com
Michael J. McKeon
Fish & Richardson P.C.
1425 K Street, NW, 11th Floor
Washington, DC 20005
202-783-5070 – Telephone
202-783-2331 – Facsimile
mckeon@fr.com
Case 2:10-cv-00490-JRG Document 89 Filed 08/16/12 Page 2 of 3 PageID #: 1456
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on August 16, 2012, a true and correct copy of this
document was filed and served on all counsel of record through the Eastern District of Texas’
CM/ECF system.
By: /s/ David J. Healey
CERTIFICATE OF CONFERENCE
The undersigned hereby certifies that the parties have complied with the meet and confer
requirements in Local Rule CV-7(h). Counsel for Plaintiff and LGE have conferred regarding the
relief requested herein, and are in agreement that the relief is unopposed.
By: /s/ David J. Healey
Courtesy of JonnyQwan Raging Bull #329010:
Here is the Pacer mentioned by Smooth..
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VERTICAL COMPUTER SYSTEMS, INC.,
Plaintiff,
v.
LG ELECTRONICS MOBILECOMM
U.S.A., INC., LG ELECTRONICS INC.,
SAMSUNG ELECTRONICS CO., LTD.,
SAMSUNG ELECTRONICS AMERICA,
INC.,
Defendants.
Civil No. 2:10-CV-00490-JRG
JURY TRIAL DEMANDED
DEFENDANTS SAMSUNG ELECTRONICS CO., LTD. AND SAMSUNG
ELECTRONICS AMERICA, INC.’S RESPONSE TO LG ELECTRONICS
MOBILECOMM U.S.A., INC. AND LG ELECTRONICS INC.’S MOTION TO SEVER
AND TRANSFER CLAIMS TO THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW JERSEY OR IN THE ALTERNATIVE TO THE NORTHERN
DISTRICT OF CALIFORNIA
Defendants, Samsung Electronics Co., Ltd. (“SECâ€), and Samsung Electronics America,
Inc. (“SEAâ€), (collectively, “Samsungâ€), do not oppose LG Electronics Mobilecomm U.S.A., Inc.
and LG Electronics Inc.’s motion to sever and transfer claims to the United States District Court
for the District of New Jersey or in the alternative to the Northern District of California.
Dated: August 16, 2012 Respectfully submitted,
By: /s/ Eric H. Findlay
Eric H. Findlay
State Bar No. 00789886
efindlay@findlaycraft.com
Brian Craft
State Bar No. 04972020
bcraft@findlaycraft.com
Case 2:10-cv-00490-JRG Document 88 Filed 08/16/12 Page 1 of 3 PageID #: 1452
2
FINDLAY CRAFT, LLP
6760 Old Jacksonville Highway, Suite 101
Tyler, TX 75703
Telephone: (903) 534-1100
Fax: (903) 534-1137
Timothy DeMasi
tim.demasi@weil.com
Julian Moore
julian.moore@weil.com
WEIL, GOTSHAL &MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: 212-310-8000
Fax: 212-310-8007
Jared B. Bobrow
jared.bobrow@weil.com
WEIL, GOTSHAL &MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: (650) 802-3000
Fax: (650) 802-3100
ATTORNEYS FOR DEFENDANTS
SAMSUNG ELECTRONICS CO., LTD.
SAMSUNG ELECTRONICS
AMERICA, INC.
Case 2:10-cv-00490-JRG Document 88 Filed 08/16/12 Page 2 of 3 PageID #: 1453
3
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document has been served on August 16, 2012 to all counsel of record who are deemed to have
consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3).
Any other counsel of record will be served by electronic mail.
/s/ Eric H. Findlay
Eric H. Findlay
Courtesy of AuthorArnsley01, Raging bull #327824:
Emily Patent Status
It looks like it all boils down to the Request for Certified Examination 8-6-2012:
Remarks/Arguments: (My synopsis. I couldn't cut and paste) (We are waiting for a response, probably a certificate).
"Claims 1 and 28 have been amended, and claims 43-45 and 48-50 have been cancelled. Claims 1-31, 33, 35-37, 39,41, 42, 46 and 47 are pending. Applicant...respectfully requests reconsideration and full allowance of all pending claims."
As Vertical17 has mentioned in his referenced post 327560 below, the only remaining claim rejection of wording was in Claim 1 where originally it said in the last paragraph, ‘’Automatically manipulating the content of Markup Language Documents’’ has been changed to read ‘’Automatically determining by said processor when the step of storage is complete and, upon determining that the step of storage is complete, automatically modifying (not manipulating) the content of the Markup Language documents.
So we are waiting for the patent office to issue a certificate. It looks like the debate on all claims has been completed. Of the 50 original claims 9 have been withdrawn. The patent office is now holding only the 41 acceptable claims that they have reviewed over the past 11 years and not found any reason to disallow. So the slightly shortened list of 41 claims should all be approved.
That is perfect, considering, that in an infringement trial the judge at some point tells the patent holder to pick out the ten claims that he wants to prosecute in the coming trial. Say for example there are 22 claims infringed in a lawsuit and the patent holder narrows it down to ten for the court's docket, easy enough to do.
At the patent office there are still 41 claims under consideration for full allowance. Looks like VCSY hit a home run here even if the process did take 11 years and aged everyone involved by 20 years, including you and me, probably.
Vertical17 post yesterday: The interviewer comments are on the patent pair site for Emily which is back to life. It looks like the semantics came down to changing one word...from manipulating to modifying. Did anyone else see that in the information posted
Vertical17 post 327696 this morning: Per dabbler's update on Emily Patent. She is off to the examiner for her yearly physical and all signs look like she will pass with flying colors
08-08-2012 Date Forwarded to Examiner
08-06-2012 Request for Continued Examination (RCE)
08-08-2012 Disposal for a RCE / CPA / R129
08-06-2012 Request for Extension of Time - Granted
08-06-2012 Workflow - Request for RCE - Begin
07-24-2012 Email Notification
07-24-2012 Mail Applicant Initiated Interview Summary
07-18-2012 Interview Summary- Applicant Initiated
03-05-2012 Electronic Review
03-05-2012 Email Notification
03-05-2012 Mail Final Rejection (PTOL - 326)
02-27-2012 Final Rejection
JonnyQwan post 327793 today: Emily Update: 08-08-2012
‘’Docketed New Case - Ready for Examination’’
We may FINALLY be within a few weeks of allowance!!!!!!!!
Emily appears ready to shine!!!!
The ‘’arguments/remarks in support’’ sure looked good, and addressed the issues that the Examiner agreed would clearly teach a process that was not taught in the prior art that was the conflict in previous attempts at allowance.
OTHER PATENT RELATED NEWS:
TexasStar post 327816 today: DAS – Domain Awareness System (Looks like it based on VCSY’s ResponseFlash a ‘744 patent based program.) ‘’The DAS was stitched together from other Microsoft products such as SharePoint...’’
http://blogs.wsj.com/cio/2012/08/08/the-nypd-is-microsofts-new-business-partner/?mod=yahoo_hs
Courtesy of jonnyQwan raging bull #327793:
Emily Update:
08-08-2012
"Docketed New Case - Ready for Examination"
We may FINALLY be within a few weeks of allowance!!!!!!!!
Emily appears ready to shine!!!!
The "arguments/remarks in support" sure looked good, and addressed the issues that the Examiner agreed would clearly teach a process that was not taught in the prior art that was the conflict in previous
attempts at allowance.
Courtesy of Dabbler3248, Raging Bull #327512:
By: dabbler3248
05 Aug 2012, 03:51 PM CDT
Msg. 327317 of 327511
" Here's some good news! As of tomorrow VCSY will own NAVPath outright!
"Upon full payment, InfiniTek shall transfer and assign ownership of the NAVPath software developed by InfiniTek for use with NOW Solutions emPath® software application and Microsoft Dynamics NAV (formerly Navision) business solution platform."
"On December 31, 2011, the Company and InfiniTek entered into a settlement agreement whereby the Texas Action and the California Action were both dismissed. Pursuant to the terms of the settlement agreement, Vertical agreed to pay InfiniTek $82,500 in three equal installments with the last payment due by or before August 5, 2012. Upon full payment, InfiniTek shall transfer and assign ownership of the NAVPath software developed by InfiniTek for use with NOW Solutions emPath® software application and Microsoft Dynamics NAV (formerly Navision) business solution platform. The amounts in dispute were included in our accounts payable and accrued liabilities and have been adjusted to the settlement amount of $82,500 at December 31, 2011. The Company has made $37,500 in payments due under the settlement agreement as of May 15, 2012."
http://yahoo.brand.edgar-online.com/displayfilinginfo.aspx?FilingID=8620559-24253-51597&type=sect&TabIndex=2&companyid=70466&ppu=%252fdefault.aspx%253fcik%253d1099509
--------------------------------------
and here's the original Infinitek webpage from almost four years ago...
NAVPath is an extraordinary union joining Microsoft Dynamics NAV, the world’s best selling ERP software for small to medium businesses to emPath the best-of-breed HR/Payroll software.The interface joining these two products enables a version of emPath to be run from Navision seemlessly.
This bundled package is offered to the user inthree options:
The customer can purchase the software and run it on their network (outright ownership)
The software can be hosted in a FAS70 compliant Data Center(Software-as-a-Service)
The software can be run as a payroll service: payroll checks/compliance/tax reporting deductions.
In addition, a scaled-down emPath version has been developed which is easier to use and set up, with discounted pricing.
A major advantage of the emPath solution is that the payment can be taken on the day of issuance instead of 2-3 days in advance as other service providers do. Why should theyhave the interest on your money which they "float"?You can do the math.
Additional benefits of NAVPath:
High-end "leader-of-the-pack" emPath functionality run from Navision
Employee self-service to look up/manage own information
Reduce payroll costs by as much as 40%
Shouldn’t you be looking at combining the benefits of Navision with emPATH, a world-class HR/Payroll solution?Contact us today to learn more Contact Us.
-----------------
http://www.infinitek.biz/SoftwareSolutions/emPath/tabid/67/Default.aspx
The power of emPath
The Business Arrangement
The emPath HRMS system is sold exclusively by InfiniTek. A special offering linking emPath to NAV is also available under the brand “NAVPathâ€. The impressive infrastructure and hosting environment is courtesy of NOW Solutions.
What is emPath?
A web-based end-to-end human resources, payroll and benefit administration solution available in two options: In-House and Software as a Service (SaaS). With the in-house version software is installed and managed at your facility accessed from a secure internet connection. The HRMS system offered as a SaaS allows you the benefits of the in-house version without the overhead of managing software and hardware environment.
What distinguishes emPath from other HRMS solutions?
The feature-intensive web-based software is comprehensive and scalable, all at a remarkably low cost-of-ownership. It is the right tool for today’s evolving environment, where simply processing paperwork and issuing pay checks is simply not good enough. The pressures of today means that you do more things, faster, better with more detail using fewer resources. That means the HRMS professionals must now manage strategic change, not just perform functions.
And the issues are becoming more complex: changing legislation, compliance and practices, frequent shifts in benefit policies and pressure to increase productivity while controlling costs. This is where emPath excels offering robust functionality at a lower cost of ownership than the traditional model. No matter how complex your payroll demands are, emPath’s easy-to-use formula-building capabilities make quick work of pay rates, deductions or union payrolls.
Bottom line Benefits
•Ensure tight integration of your human resources and payroll functions
•Utilize comprehensive administrative and workflow capabilities
•Empower employees through employee and manager self-service
•Control payroll processing costs and time (up to 50% reduction)
•Increase productivity and efficiency of benefits administration
•Ensure regulatory and legislative compliance
•Establish and maintain security for employee and payroll records
User friendliness
Easy to use, set up and maintain via a browser interface, just like the internet.
EmPath, like other web-based applications is a software tool that resides on a centralized server and is accessed via the World Wide Web. Unlike traditional solutions, emPath does not require software to be installed on each user’s desktop. All functionality is accessed through the web.
This solution also features a Microsoft-centric approach to maintain compatibility with other business applications your HR staff uses. With familiar commands and maneuverability, they’re up to speed in no time. And the system integrates seamlessly with other desktop applications your employees are already familiar with. "
Courtesy of Vertical 17 on Raging Bull #327257 and thanks to the Raging Bull guys for all their leg work on this:
" From Tiny Web Server Patent App (probably posted already):
Pub. No.: WO/2012/082780 International Application No.: PCT/US2011/064708
Publication Date: 21.06.2012 International Filing Date: 13.12.2011
IPC: G06F 9/54 (2006.01)
G PHYSICS
06 COMPUTING; CALCULATING; COUNTING
F ELECTRIC DIGITAL DATA PROCESSING
9 Arrangements for programme control, e.g. control unit
06 using stored programme, i.e. using internal store of processing equipment to receive and retain programme
46 Multiprogramming arrangements
54 Interprogramme communication
Applicants: VERTICAL COMPUTER SYSTEMS INC. [US/US]; 101 W. Renner Road, Suite 300 Richardson, TX 75082 (US) (For All Designated States Except US).
VALDETARO, Luiz, Claudio [US/US]; (US) (For US Only)
Inventors: VALDETARO, Luiz, Claudio; (US)
Agent: STONE, Jack, D., Jr.; Scheef & Stone, L.L.P. 500 N. Akard, Suite 2700 Dallas, TX 75201 (US)
Priority Data: 12/966,741 13.12.2010 US
Title (EN) SYSTEM AND METHOD FOR RUNNING A WEB SERVER ON A MOBILE INTERNET DEVICE
(FR) SYSTÈME ET PROCÉDÉ DE MISE EN ŒUVRE D'UN SERVEUR WEB SUR UN DISPOSITIF INTERNET MOBILE
Abstract:
(EN)A mobile Internet device (MID) having an operating system, a user interface framework, and telephony functionality. A web server is integrated into the operating system and configured for servicing HTTP requests. Telephony functionality is operable by said OS. Multiple such MID's are configurable as a peer-to-peer network, or peer-to-peer social network.
(FR)Un dispositif Internet mobile (MID) comporte un système d'exploitation, une structure d'interface utilisateur et une fonctionnalité de téléphonie. Un serveur Web est intégré dans le système d'exploitation et configuré pour servir des demandes HTTP. La fonctionnalité de téléphonie peut être mise en œuvre par ledit système d'exploitation. De multiples MID sont configurables en tant que réseau d'égal-à -égal, ou réseau social d'égal-à -égal.
Designated States: AE, AG, AL, AM, AO, AT, AU, AZ, BA, BB, BG, BH, BR, BW, BY, BZ, CA, CH, CL, CN, CO, CR, CU, CZ, DE, DK, DM, DO, DZ, EC, EE, EG, ES, FI, GB, GD, GE, GH, GM, GT, HN, HR, HU, ID, IL, IN, IS, JP, KE, KG, KM, KN, KP, KR, KZ, LA, LC, LK, LR, LS, LT, LU, LY, MA, MD, ME, MG, MK, MN, MW, MX, MY, MZ, NA, NG, NI, NO, NZ, OM, PE, PG, PH, PL, PT, QA, RO, RS, RU, RW, SC, SD, SE, SG, SK, SL, SM, ST, SV, SY, TH, TJ, TM, TN, TR, TT, TZ, UA, UG, US, UZ, VC, VN, ZA, ZM, ZW.
African Regional Intellectual Property Org. (ARIPO) (BW, GH, GM, KE, LR, LS, MW, MZ, NA, RW, SD, SL, SZ, TZ, UG, ZM, ZW)
Eurasian Patent Organization (EAPO) (AM, AZ, BY, KG, KZ, MD, RU, TJ, TM)
European Patent Office (EPO) (AL, AT, BE, BG, CH, CY, CZ, DE, DK, EE, ES, FI, FR, GB, GR, HR, HU, IE, IS, IT, LT, LU, LV, MC, MK, MT, NL, NO, PL, PT, RO, RS, SE, SI, SK, SM, TR)
African Intellectual Property Organization (OAPI) (BF, BJ, CF, CG, CI, CM, GA, GN, GQ, GW, ML, MR, NE, SN, TD, TG).
Publication Language: English (EN)
Filing Language: English (EN) "
courtesy of Arthurarnsley01 Raging Bull #326988:
" In California 7-24-2012, IWOV signed Order:
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
INTERWOVEN, INC.,
Plaintiff,
vs.
VERTICAL COMPUTER SYSTEMS, INC.
Defendant.
)
CIVIL CASE NO.: 3:10-cv-04645-RS
[PROPOSED] ORDER GRANTING
STIPULATED REQUEST FOR ORDER
ALLOWING AMENDMENT OF
INFRINGEMENT AND INVALIDITY
CONTENTIONS AND CLARIFYING TIMING
OF EXPERT TESTIMONY
JURY TRIAL DEMANDED
Having reviewed the Stipulation filed by the parties pursuant to Local Rule 7-12 and
Patent L.R. 3-6, and finding that good cause exists,
IT IS HEREBY ORDERED that:
ï‚•ï€ On or before August 31, 2012, Vertical Computer Systems, Inc. (“Verticalâ€) shall
serve its amended Infringement Contentions.
ï‚•ï€ On or before September 15, 2012, Interwoven, Inc. (“Interwovenâ€) shall serve its
amended Invalidity Contentions.
ï‚•ï€ On or before December 7, 2012, the Parties shall disclose expert testimony and
reports on issues for which the Parties bear the burden of proof in accordance with
Federal Rule of Civil Procedure 26(a)(2).
ï‚•ï€ On or before January 18, 2013, the Parties shall disclose expert testimony and
reports on issues for which the Parties do not bear the burden of proof in
accordance with Federal Rule of Civil Procedure 26(a)(2).
ï‚•ï€ On or before February 15, 2013, all discovery of expert witnesses pursuant to
Federal Rule of Civil Procedure 26(b)(4) shall be completed.
PURSUANT TO THE STIPULATION, IT IS SO ORDERED.
Dated: _7-24-2012____Signed by Judge Seeborg ___________________ _____________________________
Honorable Richard Seeborg
United States District Court Judge
7/24/12
Case3:10-cv-04645-RS Document123 Filed07/24/12 Page2 of 2 "
Courtesy of Jonnyqwan Raging Bull #326976:
" As I said, I think that LG and VCSY have come to a settlement agreement. In order to settle things between those two parties, they need to seperate themselves with Samsung, which is joined with them in the previous lawsuit.
My thinking is that VCSY will make sure that the terms of the settlement will be confidential, and they surely would not want Samsung to have access to the details of the settlement terms and VCSY will want to have mediation details considered priviledged information and not be subject to subpoena by other parties (ie... Samsung and/or Interwoven). I did some DD and discovered that some states will NOT allow confidential settlement details and/or mediation details to be released to outside parties via a subpoena, so that information will truly remain confidential. Two of those states happen to be New Jersey and California!
Are things making more sense now? "
Courtesy of Smoothsailing20 Raging Bull #326916:
" pacer update 8/1
08/01/2012 86 ORDER granting 85 Motion for leave to file under seal defts Seal Document (motion) to Sever and Transfer Claims to the United States District Court for the District of New Jersey or in the Alternative to the Northern District of California. "
Courtesy of JonnyQwan on raging Bull # 326773:
" Very interesting!!!!!!
Looks like VCSY and LG want to do this thing in California!!!!
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VERTICAL COMPUTER SYSTEMS, INC.
Plaintiff,
v.
LG ELECTRONICS MOBILECOMM U.S.A.,
INC., LG ELECTRONICS, INC., SAMSUNG
ELECTRONICS CO., LTD., SAMSUNG
ELECTRONICS AMERICA, INC.
Defendants.
CIVIL ACTION NO. 2:10-CV-490
LG ELECTRONICS MOBILECOMM U.S.A., INC. AND LG ELECTRONICS INC.’S
MOTION TO SEAL THEIR MOTION TO SEVER AND TRANSFER CLAIMS
Defendants LG ELECTRONICS MOBILECOMM U.S.A., INC. AND LG
ELECTRONICS INC. (“LGEâ€) submit this Unopposed Motion for Leave to File Under Seal its
Motion to Sever and Transfer Claims to the United States District Court for the District of New
Jersey or in the Alternative to the Northern District of California.
LGE’s Motion to Sever and Transfer Claims to the United States District Court for the
District of New Jersey or in the Alternative to the Northern District of California contains
confidential information, and as a protective order has not yet been entered, LGE respectfully
moves for leave to file their Motion to Sever and Transfer Claims under seal.
Plaintiff Vertical Computer Systems, Inc. and Defendants Samsung Electronics Co., Ltd.
and Samsung Electronics America, Inc. are not opposed to the relief sought by this motion, and
LGE therefore requests that the Court enter an order allowing LGE to file its Motion to Sever
and Transfer Claims to the United States District Court for the District of New Jersey or in the
Alternative to the Northern District of California under seal.
Case 2:10-cv-00490-JRG Document 85 Filed 07/31/12 Page 1 of 3 PageID #: 1180
Page 2
Dated: July 31, 2012 Respectfully submitted,
FISH & RICHARDSON P.C.
By: /s/ David J. Healey
David J. Healey
State Bar No. 09327980
Fish & Richardson P.C.
1221 McKinney, Suite 2800
Houston, TX 77010
713-654-5300 -- Telephone
713-652-0109 -- Facsimile
healey@fr.com
OF COUNSEL:
Kevin Su
MA Bar No. 663726
Fish & Richardson P.C.
One Marina Park Drive
Boston, MA 02210-1878
617-542-5070 -- Telephone
617-542-8906 -- Facsimile
su@fr.com
Michael J. McKeon
Fish & Richardson P.C.
1425 K Street, NW, 11th Floor
Washington, DC 20005
202-783-5070 -- Telephone
202-783-2331 -- Facsimile
mckeon@fr.com
Counsel for Defendants
LG ELECTRONICS MOBILECOMM
U.S.A., INC. AND LG ELECTRONICS,
INC.
Case 2:10-cv-00490-JRG Document 85 Filed 07/31/12 Page 2 of 3 PageID #: 1181
Page 3
CERTIFICATE OF CONFERENCE
The undersigned hereby certify that counsel has complied with the meet and confer
requirement in Local Rule CV-7(h). Counsel for Plaintiff and Samsung have indicated that this
motion is unopposed.
/s/ David J. Healey
David J. Healey
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document has been served on July 31, 2012 upon all counsel of record who are deemed to have
consented to electronic service via the Court’s CM/ECF system per Local Rule CV-5(a)(3). Any
other counsel of record will be served by first class mail.
/s/ David J. Healey
David J. Healey
What can this mean???
Go VCSY!!!! "