Guessing many here have seen this, posting for those who haven’t:
GooglestoleourpatentGooglestoleourpatent3 days ago
Absolute smackdown LOL
Google is claiming equitable intervening rights for modules sold after the reexamination certificate date; the design history of these memory modules is directly relevant to, among other things, determining if “substantial preparation” was made before the reexamination certificate issued. 35 U.S.C. § 252. The operation, not just the naming convention, of historical devices and current devices informs this inquiry. Interrogatory No. 3 and RFPs 4 and 6 seek the factual basis for Google’s intervening rights defense, and specifically includes claim 16. Google’s response does nothing more than list the claims for which it asserts absolute intervening rights (without any explanation as to why it believes the amendments to those claims were substantive), allege that it is entitled to equitable intervening rights for all memory modules sold after this date, and state that “Google will address the specific accused memory modules and its specific substantial preparations in the upcoming briefing on intervening rights, after Netlist identifies the asserted claims and 1 Claim 16 was converted from dependent to independent form without any changes. Any claim that Google has an intervening rights defense directed at this claim is contradicted by black letter Federal Circuit case law. Marine Polymer Techs, 672 F.3d at 1363-64. Case 4:09-cv-05718-SBA Document 134-3 Filed 06/10/21 Page 2 of 8 - 3 - accused products.” Again, the idea that Netlist has to wait until Google’s dispositive motion to first find out the factual basis for Google’s defense is absurd. Intervening rights is a heavily factual inquiry. Likewise, Google’s arbitrary declaration right before this letter was filed that it will decide what Visto factors are relevant to this case and will produce the information it thinks is relevant has it backwards. As the Federal Circuit makes clear, substantial preparation is only one factor that is weighed. Shockley v. Arcan, 248 F.3d 1349, 1361 (Fed. Cir. 2001) (unclean hands blocked intervening rights). The intervening rights statute gives the Court broad equitable discretion. If Google wants to raise the defense, it must accept the scope of discovery required.
Emil Nolde
