Vertical Computer Systems Inc (fka VCSY)

[lbman]

Pacer Update from SF CA. Courtesy of JonnyQwan Raging bull# 369942:

This is a lenghty Document(may take a while to digest) but highlights vertical's case against Interwoven.

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
VERTICAL COMPUTER SYSTEMS, INC.'S OPPOSITION TO INTERWOVEN INC.'S MOTION FOR SUMMARY JUDGMENT
DATE: JUNE 20, 2013 TIME: 1:30 P.M.
DEPT: COURTROOM 3 JUDGE: HON. RICHARD SEEBORG
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TABLE OF CONTENTS
Page
I. INTRODUCTION .............................................................................................................. 1
II. ISSUES PRESENTED........................................................................................................ 2
III. STATEMENT OF FACTS ................................................................................................. 3
A. Subject Matter of the Litigation.............................................................................. 3
B. Aubrey McAuley Disclosed His Invention to Individuals that Implemented it in the Infringing Product at Interwoven ........................................ 5
C. Proof of Infringement ............................................................................................. 6
D. Infringement Using the New Claim Construction Advanced by Interwoven......... 7
E. This Court's Construction of "Arbitrary Object" .................................................... 8
F. Reexamination Prosecution Histories of the Patents-In-Suit.................................. 8
1. Reexamination of the '744 Patent ............................................................... 9
2. Reexamination of the '629 Patent ............................................................. 11
G. Interwoven Cited These Same Statements in the Past but did not Seek the New Proposed Construction....................................................... 13
H. Proof of Damages ................................................................................................. 14
IV. ARGUMENT.................................................................................................................... 17
A. The Standards for Summary Judgment................................................................. 17
B. Standards for Patent Infringement ........................................................................ 17
C. The Meaning of "Arbitrary Objects" Does Not Require "Clarification" .............. 18
D. Interwoven's Argument Here Does not Greatly Depart from its Arguments During Claim Construction .................................................. 19
E. Interwoven's TeamSite Products Infringe The Asserted Claims Even Under the New Construction Proposed by Interwoven ............................... 20
F. Vertical Has Provided Overwhelming Proof of Lost Profits and Reasonable Royalty Damages........................................................................ 22
G. Vertical Can Prove its Damage Claim Even Without its Expert .......................... 22 Case3:10-cv-04645-RS Document175 Filed06/03/13 Page2 of 31
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H. The Evidence Supports Damages Based on Vertical's Lost Profits...................... 23
I. Vertical is Statutorily Entitled to a Reasonable Royalty, at a Minimum.............. 24
V. CONCLUSION................................................................................................................. 25 Case3:10-cv-04645-RS Document175 Filed06/03/13 Page3 of 31
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TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Anderson v. Liberty Lobby, 477 U.S. 242 (1986).................................................................................................................17
Bai v. L & L Wings, Inc., 160 F.3d 1350 (Fed. Cir. 1998)................................................................................................18
Calouri v. One World Techs., Inc., 2012 WL 630346 (C.D. Cal. Feb. 27, 2012)............................................................................25
Dow Chem. Co. v. Mee Indus., Inc., 341 F.3d 1370 (Fed. Cir. 2003)..........................................................................................23, 24
Gen. Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d. 978 (Fed. Cir. 1997).................................................................................................18
Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473 (Fed. Cir. 1998)..........................................................................................17, 18
Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F.Supp. 1116 (S.D. N.Y. 1970).............................................................................16, 22, 23
Howes v. Med. Components, Inc., 814 F.2d 638 (Fed. Cir. 1987)..................................................................................................17
IMS Technology, Inc. v. Haas Automation, Inc., 206 F.3d 1422 (Fed. Cir. 2000)................................................................................................17
LaserDynamics, Inc. v. Quanta Comp., Inc., 694 F.3d 51 (Fed. Cir. 2012)....................................................................................................24
Omega Engineering, Inc. v. Raytek Corp., 334 F.3d 1314 (Fed. Cir. 2003)................................................................................................17
Panduit Corp. v. Stalin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978) ......................................................................................22, 23, 24
Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538 (Fed. Cir. 1995) (en banc) .....................................................................23, 24, 25
Seiko Epson Corp. v. Coretronic Corp., 2009 U.S. Dist. LEXIS 44064 (N.D. Ca. May 26, 2009) ........................................................20
Semiconductor Energy Laboratory Co., Ltd. v. Chi Mei Optoelectronics Corp., 2006 U.S. Dist. LEXIS 52597 (N.D. Ca. July 28, 2006).........................................................20
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As shown below, even with its new proposed construction, Interwoven cannot avoid liability. It infringes under either construction. The accused TeamSite and LiveSite products infringe regardless; and infringement is a question of fact for jury determination.
In yet another "hail Mary" type of attempt, Interwoven moves for summary judgment on the issue of compensatory damages, arguing that Vertical does not have any proof on this issue. To the contrary, Vertical has a mountain of evidence which it has submitted with this Opposition to prove damages on a lost profit or a reasonable royalty basis. Even if it did not have this evidence, Vertical, to avoid summary judgment, could at the very least rely on the testimony of Interwoven's damage expert and on the fact that it seeks a permanent injunction.
Therefore, for the reasons further detailed below, Vertical respectfully requests that the Court deny Interwoven's Motion for Summary Judgment.
II. ISSUES PRESENTED
The issues presented by the present Motion for Summary Judgment include the following:
A. Has Interwoven properly asked for reconsideration or "clarification" of this Court's Claim Construction Order under the Local Rules of this Court?
B. Do Interwoven's arguments in support of its request to clarify the claim construction greatly depart from the arguments that it already advanced through claim construction briefing and, if not, does Interwoven's attempt at clarification fail on that fact alone?
C. Does the patentee of the patents-in-suit suggest anywhere in those patents, their original prosecution histories or in their reexamination prosecution histories that swapping or interchangeability of different types of objects is necessary for its patents?
D. Do the accused products still infringe even under Interwoven's new proposed construction for "arbitrary objects," and is this a question of fact for the jury?
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E. Is the quantity and quality of evidence used to support a damages award properly the subject of a motion for summary judgment, and has Vertical produced sufficient evidence to support a compensatory damage award?
F. Does the fact that Vertical has the option of relying on Interwoven's Damage Report to support its damages claims or the fact that Vertical is seeking a permanent injunction against Interwoven compel denial of Interwoven's motion for summary judgment on damages?
III. STATEMENT OF FACTS
A. Subject Matter of the Litigation
This Court aptly summarized the factual background of this litigation on pages 2 through 4 of its December 30, 2011 Claim Construction Order [Dkt. No. 83]:
The technology in this dispute involves a system for generating software applications in an 'arbitrary object framework.' Specifically, it presents a method for separating the form, content and functionality of computer applications so that each component may be independently modified. The invention purports to simplify the work of computer programmers by providing a more efficient way of creating and modifying software through the use of 'arbitrary objects.'
Typically, software developers rely on standard object-oriented programming to create complex computer programs such as websites. Utilizing such traditional programming, developers construct each piece of the program separately. These pieces are referred to as 'objects.' Once all the objects are complete, a master developer can fit them together to formulate a complete program.
Over the years, many tools have been created to streamline this process so that developers can more easily work together to build software through the sharing and connecting of objects. For example, programmers can now develop reusable formatting templates and distribute them over the internet. Other programmers may then adopt these templates for use in their own websites.
The patents-in-suit purport to invent a new method for connecting objects and streamlining software development. To distinguish the objects used in these two patents from the 'classic objects' in other software tools, Aubrey McAuley, the named inventor of both patents, coined the term 'arbitrary object.' Vertical asserts that McAuley, acting as a lexicographer, did not ascribe any significance to the word 'arbitrary'; he simply wished to differentiate the objects in his invention from the 'classic objects' of traditional programming tools.
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For purposes of clarification, the specification describes the differences between classic and arbitrary objects: When using classic objects, a serial approach is required to integrate the form, function, and content of complex software applications. Figure 1 demonstrates one embodiment of such an approach. In Figure 1 a complex program is generated through the integration of either newly-made or reusable classic objects. First, content is created or chosen. Then form is developed for the presentation of the content. Finally, function is generated using code. The specification notes that while different industries may perform these steps in a different order than presented in Figure 1, the concept is the same and, most importantly, when using classic objects, the different software components—the form, content, and function—are always somewhat interdependent. Consequently, if a programmer wants to change the content of a website composed of classic objects, the form is necessarily affected. The programmer would be required to generate the entire website anew in order to retain the original form while manipulating the existing content. The patents-in-suit allegedly serve to make this process more efficient by creating a new way of interfacing program units. They allow developers, for example, to alter the content or form of a website easily without affecting the function, or any other component; developers, therefore, do not need to rewrite a program simply to implement a minor alteration. The invention so simplifies the process by separating the form, functionality, and content of a program into discrete components and facilitating the interface between objects. Such separation is achieved through the use of arbitrary objects. The purported invention is a method which creates these arbitrary objects, manages the arbitrary objects in an object library, and deploys the arbitrary objects into a design framework for use in a computer program.
As an illustration of the patents, the specification considers the web site of a large newspaper. Traditionally, if a marketing department wished to alter the appearance of a header on one page of the site, depending on the browser used, a programmer may need to manipulate thousands of pages of the website to make the desired change without affecting the rest of the website. With the development of arbitrary objects, this process is much easier: the programmer can simply retrieve the arbitrary object which controls the appearance of the header and manipulate it accordingly, without affecting the remaining form, content, or function of the website. Vertical concedes that prior art solutions have succeeded in separating content from form or content from functionality. It asserts, however, that none have purported to separate all three, thereby, allowing programmers to make independent changes to any part of a complex program without generating unwanted upstream revisions.
Both the '744 patent and the '629 patent assert this new method of object interfacing. The '629 patent is merely a continuation of the '744 patent. Aside from a few typographical changes in the '629 patent, its specification is essentially identical to that of the '744 patent. The parties have jointly presented ten terms found in the claims of the patents for construction by the Court. Despite this presentation, Vertical insists that only the term 'arbitrary objects' requires Case3:10-cv-04645-RS Document175 Filed06/03/13 Page9 of 31
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interpretation; the remaining terms should be read according to their plain and ordinary meaning. In the alternative, Vertical provides simple constructions for each of these terms which closely align with the respective ordinary meanings.
B. Aubrey McAuley Disclosed His Invention to Individuals that Implemented it in the Infringing Product at Interwoven
After filing the application for the '744 patent, Aubrey McAuley, the inventor of the patents-in-suit, implemented the inventions of his patents in a product that his company, Adhesive Software, Inc., called "SiteFlash." He made a number of technical presentations of the inventions and the product, including presentations to two individuals who ultimately became employees of Interwoven. (See McAuley Decl., Exhibit 3, ¶ 3). Those two individuals, Mr. Frank Livaudais and Mr. Eben Miller, helped implement arbitrary objects throughout the accused TeamSite and LiveSite products. After talking to Mr. McAuley, Messrs. Livaudais and Miller formed Thirteen Colonies, which they sold to Interwoven in 2004. They then went to work for Interwoven and helped develop the infringing TeamSite and LiveSite products. Their names appear throughout the documents produced by Interwoven in this litigation. (See the deposition transcript of Rajib Sengupta, Interwoven's 30(b)(6) designee, Exhibit 10 at pp. 14-20). After Adhesive dissolved and Vertical acquired the rights to the patents-in-suit, Mr. McAuley went to work for Vertical and assisted Vertical in refining the SiteFlash product and bringing the refined product to market. The SiteFlash product was an instant success in the marketplace when Adhesive introduced it and when Vertical re-introduced it as its product in 2002. It won the prestigious Crossroads A-List award in both of its first two years on the market. (From 1995 to 2005, the Crossroads program, a rigorous process of research and validation, drew on in-depth interviews with business executives to identify: (a) key business priorities for IT investment, and (b) products that made the strongest contribution to those priorities.) Even after the dot-com bust and without much advertising, Vertical was able to sell the SiteFlash product Case3:10-cv-04645-RS Document175 Filed06/03/13 Page10 of 31
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until Interwoven began using the patented technology in its SiteFlash product. (See McAuley Decl., Exhibit 3, ¶ 3).
C. Proof of Infringement
Vertical learned of the infringing TeamSite product through a 537-page book titled The Definitive Guide to Interwoven TeamSite, ("The Definitive Guide") authored by Messrs. Brian Hastings and Justin McNeal, two employees of Federal Express, a purchaser of the TeamSite product. (Cover pages and Introduction pages of the book are attached as Exhibit 11.) Vertical deposed Mr. Hastings and confirmed that Mr. Tom Shell, an enterprise services executive for Interwoven, was the technical reviewer of the book (see Exhibit 11, p. xxix); that Mr. Russell Nakano, co-founder and former principle consultant of Interwoven, wrote the forward to the book; and that Mr. Sunil Menon, senior product manager of web content management at Interwoven, greatly assisted the two authors (see Exhibit 11, p. xxxi). (Mr. Hastings' deposition transcript attached as Exhibit 12).
Mr. Luiz Valdetaro, chief technical officer of Vertical, reviewed the Definitive Guide; and with the help of Mr. John Maly, the expert retained by Vertical for this action, conducted a detailed analysis of infringement. They produced claim charts memorializing that infringement of the patents-in-suit by the Interwoven TeamSite products.1 (See Valdetaro Decl, Exhibit 6, ¶ 9; claim charts attached as Exhibit 13). The claim charts include an element-by-element infringement analysis of the accused claims of the patents-in-suit.
On September 21, 2012, Dr. Clifford Kraft, a technical consultant employed by counsel for Vertical, visited the offices of Interwoven's counsel, inspected the TeamSite products, and confirmed that the information provided in the Definitive Guide was correct. He further
1 By using the term "TeamSite products," Vertical includes the TeamSite tool and LiveSite which operates with the TeamSite tool.
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confirmed that TeamSite did not materially change from the time of the book to the time of his inspection. He reported all this information and the elements and functionality of the TeamSite products to Mr. Maly. (See Kraft Decl., Exhibit 4, ¶ 5; See the deposition testimony of Interwoven's other 30(b)(6) designee, Mr. Mazumdar, Exhibit 14 at pp. 14:24 – 15:7) the information discovered by Dr. Kraft appears in Mr. Maly's Declaration, Exhibit 5).
Mr. Maly reviewed all this information and the technical documents produced by Interwoven, prepared his expert report, and expressed his opinions on infringement. His Declaration (Exhibit 5) is his initial report with additional paragraphs that provide proof that even under Vertical's new proposed claim construction for arbitrary objects, the TeamSite product infringes the asserted claims of the patents in suit.
D. Infringement Using the New Claim Construction Advanced by Interwoven
Paragraphs 91 to 97 of Mr. Maly's Declaration do indeed show how Interwoven's TeamSite, LiveSite and related products still infringe the asserted claims of the patents-in-suit even if the Court changes its claim construction in response to Interwoven's urging. Mr. Maly provides four examples of such infringement, but many, many more are possible. First, Mr. Maly explains that there are seven types of arbitrary objects based on all possible combinations of form, content and function. Then, using the infringing TeamSite product, Mr. Maly shows that it is possible to generate TeamSite buttons (which belong to the TeamSite class known as Components) that have different arbitrary object types. He shows that TeamSite allows swapping or interchanging of the buttons that are different types of arbitrary objects by allowing their calling solely by name.
One of Mr. Maly's examples is the interchange of a button that is an arbitrary object of type 6 (form and functionality) with an arbitrary object of type 7 (form, functionality and Case3:10-cv-04645-RS Document175 Filed06/03/13 Page12 of 31
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content). Mr. Maly gives further examples of interchanging other kinds of buttons, interchanging TeamSite skins, and interchanging TeamSite components that are not buttons, all of which are different types of arbitrary objects. This presentation proves that modifying the Court's claim construction of "arbitrary objects" according to Interwoven's request does not dispose of this case. Even if the Court allows such a modification (which Vertical has shown is clearly improper), a jury can still find infringement under the new construction.
E. This Court's Construction of "Arbitrary Object"
Pursuant to the Local Patent Rules of this Court, the parties carefully selected ten terms for construction and briefed their positions on the proposed definitions. On December 30, 2011, this Court issued its Claim Construction Order [Dkt. No. 83]. And, the most important term construed by the Court is "arbitrary objects" – the parties so confirmed in their briefings. The Court defined an "arbitrary object" as an:
object that can be created independently by individual preference, [that] are [sic] 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.
Interwoven did not ask for reconsideration of this Order or for "clarification" of the Court's construction. It did not do so at the time of the Order; and it did not do so after the Patent Office reexamined the patents-in-suit. It waited until the present summary judgment motion which the Court will more than likely decide a month before the scheduled August 12, 2013 trial.
F. Reexamination Prosecution Histories of the Patents-In-Suit
Instead of filing a motion for reconsideration or clarification after the Court's Order, what Interwoven did, seven days after this Court issued its Claim Construction Order, was to file petitions for reexamination of both the patents-in-suit. The Patent Office granted these petitions and reexamined both patents. As shown below, the reexamination prosecutions of the patents-in-
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suit mirrored the original prosecutions of the patents and simply did not provide any basis for the new construction for "arbitrary objects" proposed by Interwoven.
1. Reexamination of the '744 Patent
In the first Office Action of the reexamination for the '744 patent dated April 18, 2012 (attached as Exhibit 15), the Examiner identified claims 1-11, 18, 19, 21-33, 40, 41 and 45-53 of the '744 patent as those subject to reexamination; he confirmed the patentability of claims 6, 18, 19, 30, 32, 41, 50 and 51; and he rejected claims 1-5, 7, 9-11, 18, 21-29, 31, 33, 40, 44-49, 52 and 53. Vertical has asserted a number of claims of the '744 patent, including claims whose patentability the reexamination Examiner confirmed as a threshold matter without any further prosecution and with the broadest reasonable interpretation for the claims, consistent with the specification much broader than the claim scope assigned by this Court in the Claim Construction Order. Also, with respect to claims 22 and 44 (the claims dealing with swapping arbitrary objects of one type with arbitrary objects of another type), the Examiner concluded that a Borland prior art reference disclosed such swapping or interchangings.
Vertical (on behalf of Aubrey McAuley) filed an amendment in response to the first Office Action on May 31, 2012 (attached as Exhibit 16). It added independent claims 54 and 55 which essentially placed claims 22 and 44 in independent form. Vertical also submitted a copy of this Court's December 30, 2011 Claim Construction Order and argued that the Patent Office should apply the construction of "arbitrary objects" determined by this Court. With respect to interchangeability, Vertical argued the following:
Because, according to principles of the '744 Patent, arbitrary objects may be called by name only, arbitrary objects of any type can also be readily replaced with another arbitrary object of another type, i.e., arbitrary objects are interchangeable, or swappable, with each other, regardless of type. This understanding of arbitrary objects in independent Claims 1 and 26 is supported in the specification at, e.g., col. 3, line 58 - col. 4, line 6, col. 4, lines 39-2, and col. 6, lines 13-20. Furthermore, in a Markman Order (copy appended herewith) Case3:10-cv-04645-RS Document175 Filed06/03/13 Page14 of 31
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concerning the interpretation of an arbitrary object, U.S. District Judge Richard Seeborg held that "Arbitrary objects, therefore, must be interchangeable ..." (page 15, line 15; see also, page l7 line 25 – page 18, line 2). The swappability of arbitrary objects regardless of type is still more explicitly recited in dependent Claims 22 and 44.
In clear contrast to the interchangeability or swappability of arbitrary objects, because prior art object-oriented systems, such as Borland and Morgan utilize "classic" objects which cannot be called by name only, and require the passing of parameters and knowing what to expect in return, objects are not interchangeable or swappable with other objects of different types. Rather, Borland replaces one object type in a project with another object of the same type. Form objects, function objects, and content objects are all "swapped" (i.e., added or removed) to and from a project, but that is not the same as, e.g., swapping a form object for a content object or a function object. Morgan does not cure this deficiency of Borland, but is rather similar to Borland in that it also integrates different types of objects into a given application to provide functionality. That is, a form object or content object can be used in functionality, but again, that is not the same as swapping content object of form object for a functional object.
The emphasized phrases appear in the original.
Interwoven quoted this section as the basis for its estoppel argument in the present motion, but it highlighted portions inconsistent with those highlighted by the patentee. Interwoven also eliminated portions repeating the "regardless of type" language. A close review of the quoted section shows that Vertical emphasized interchangeability regardless of type – not interchangeability of different types. It shows that Vertical directed its arguments to two types of claims – those that included the interchangeability of different types of objects and those that generally recited interchangeability of any type. Interwoven's presentation is misleading.
After reviewing this amendment and arguments, the Patent Office issued a second, final Office Action on June 21, 2012 (attached as Exhibit 17), reminding the patentee that during reexamination "claims are given their broadest reasonable interpretation consistent with the specification and limitations in the specification are not read into the claims" (Exhibit 17, p. 6), defining "arbitrary objects" as "any combination of application logic and data desired by a Case3:10-cv-04645-RS Document175 Filed06/03/13 Page15 of 31
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developer," and concluding that the Borland reference teaches such objects (Page 8). Regarding the interchangeability or swapping of objects of different types, the Examiner insisted that Borland also teaches such a feature (Exhibit 17, p. 9).
Vertical filed another Amendment on August 21, 2012 (Exhibit 18), reintroducing claims 54 and 55 and adding claims 56 and 57, which are essentially claims 1 and 26, respectively, but with this Court's definition of "arbitrary objects" embedded in them. The result was that claims 54 and 55 did not include this Court's definition of "arbitrary objects," but they did have swapping of different types of objects, while claims 56 and 57 only had this Court's definition of "arbitrary objects" without the swapping.
Vertical made the same exact arguments quoted above for patentability of the rejected claims over the cited reference. The Examiner issued a Notice of Intent to Issue Ex Parte Reexamination Certificate in which he allowed claims 54 through 57, but maintained his rejection of the other previously rejected claims and only allowed the rejected dependent claims when their dependency changed from claims 1 or 26 to 56 or 57. The Patent Office cancelled claims 1 and 26 (Reexamination Certificate attached as Exhibit 19).
2. Reexamination of the '629 Patent
The Patent Office issued the first Office Action in the reexamination of the '629 patent on June 21, 2012. (Office Action attached as Exhibit 20) In that action, the Patent Office identified claims 1-6, 8-17, 19-26 and 28-32 as those subject to reexamination, confirmed the patentability of claims 6, 17, 21-26 and 28-32, and rejected claims 1-5, 8-16, 19 and 20 based primarily on the Borland reference. Thus, the Patent Office confirmed 13 claims, many of which Vertical asserts in this case, without any further argument or prosecution. The Office also acknowledged that independent claim 21 which had this Court's definition of arbitrary object embedded in it (from Case3:10-cv-04645-RS Document175 Filed06/03/13 Page16 of 31
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the time of the original prosecution) was patentable and that dependent claim 29 which includes the interchangeability of different types was also patentable.
On August 21, 2012, Vertical responded with an amendment (attached as Exhibit 21), submitting the December 30, 2011 Claim Construction Order, embedding this Court's definition of arbitrary objects in independent claims 1 and 13 and correcting a typographical error in claims 8, 11 and 28. Vertical also made the exact same argument (quoted above) regarding interchangeability as it did for the reexamination of the '744 patent.
In his Notice of Intent to Issue a Reexamination Certificate (attached as Exhibit 22) the Examiner allowed the rejected claims because the patentee included this Court's definition of arbitrary objects in the claims. With respect to the initially confirmed claims, he states that:
Borland teaches objects with corresponding arbitrary names including content, form and function objects. However, Borland's objects are not callable by name only. Instead, Borland's objects require the passing of parameters (see Borland at 12-12 through 12-4; 13-1 through 13-12). According, the references cited by the Request fail to anticipate or render obvious claims 1-6, 8-17, 19-26, and 28-32. (Emphasis in original.)
Thus, in this reexamination the Examiner acknowledges that he confirmed the patentability of the recited claims, as a threshold matter without further prosecution without regard to interchangeability or swappability of different types of objects. (Reexamination Certificate attached as Exhibit 23).
In summary, the reexamination prosecutions do not in any way show a disavowal of any claim scope to obtain allowance. The only dispute with respect to claim scope was whether the Patent Office should use this Court's claim construction or apply the broadest reasonable interpretation consistent with the specification. And, the Patent Office did not change its position as a result of any argument made by the patentee. Further, as shown below, the Case3:10-cv-04645-RS Document175 Filed06/03/13 Page17 of 31
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patentee's arguments in reexamination were the same as those made during the original prosecution.
G. Interwoven Cited These Same Statements in the Past but did not Seek the New Proposed Construction
On pages 19-20 of its responsive claim construction brief dated November 14, 2011, [Dkt. No. 76] Interwoven summarized the specifications and the prosecutions of the patents-in-suit and made the following arguments:
Moreover, a fundamental characteristic of 'arbitrary objects' is that arbitrary objects of different types must be 'interchangeable':
'The present invention allows different object types to be interchangeable.' '744 patent col.6 l. 13-14.
'In the method of the present invention, since all that exists within the framework is an arbitrary object, the arbitrary object can be swapped for another object that pulls the current piece content in question.' Id. at col.4 l. 2-6 (emphasis added).
'One arbitrary object can be easily replaced with another arbitrary object of another type.' Id. at col.4 l. 40-41 (emphasis added).
During the prosecution of the '629 patent, Vertical also stressed this notion that arbitrary objects must be interchangeable. Exh. 3 (Dec. 30, 2009 Amend. and Resp.) at 14. Under a heading titled 'Arbitrary Objects Called by Name Only and Are Interchangeable,' Vertical attempted to distinguish its invention over a cited reference by arguing that:
'[A]rbitrary objects . . . of any type can be readily replaced with another arbitrary object of another type, i.e., arbitrary objects are interchangeable with each other, regardless of type . . . .' Exh. 3 (Dec. 30, 2009 Amend. and Resp.) at 14.
'In clear contrast to arbitrary objects, prior art object-oriented systems, such as Leshem, utilize 'classic' objects which . . . are not interchangeable with other objects of different types . . . .' Id. at 15 (emphasis in original).
'[In Leshem] HTML codes ('form' object) is [sic] not interchangeable with a Java program ('function' object) or with a GIF image file ('content' object) without making changes in each object.' Id. at 15 (emphasis in original).
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Thus, 'arbitrary objects' must be interchangeable. Otherwise, the inability to interchange the form, function, and content objects of the Leshem prior art could not have distinguished it from Vertical's invention. See id. Vertical's proposed construction completely ignores this fundamental characteristic of 'arbitrary objects.' [Emphasis in original].
But, Interwoven did not assert interchangeability of different types – just interchangeability. It did not overreach as it does here because the language does not permit it. The specification "allows" different object types to be interchangeable; it does not mandate it. Arbitrary objects "can be replaced" with different arbitrary objects – they need not be replaced. The original prosecution of the '744 patent mentioned interchangeability regardless of type. The language in that original prosecution of the '744 patent, quoted above, is essentially the same as that of the reexamination prosecution that Interwoven relies upon here. Thus, the proposed basis for a new claim construction is contrived; it has absolutely nothing to do with reexamination; it does not add anything that the Court has not already considered.
H. Proof of Damages
Interwoven has taken the unusual step of moving for summary judgment on the issue of damages, arguing that Vertical does not have any evidence on this issue. The evidence, however, is much more than adequate to prove Vertical's damage claim. Mr. Gemini, Vertical's damage expert, in his two reports which are now incorporated into his Declaration (Exhibit 7), summarizes all the evidence on lost profits and reasonable royalty, analyzes that evidence in accordance with widely accepted methodology, and renders his opinions. (See also Vertical's Opposition to Interwoven's Motion to Exclude the Testimony of Joseph Gemini, filed concurrently with this Opposition). The Valdetaro Declaration (Exhibit 6) also provides factual support for Vertical's damage claims. Regarding Vertical's lost profit claim, Mr. Valdetaro states in ¶ 11 of his Declaration (Exhibit 6) that the products at issue here, i.e., Interwoven's TeamSite products and Vertical's SiteFlash products, provide unique functionality. They are tools that
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create very large and complex websites to customers who constantly change them. (Valdetaro Decl., Exhibit 6, ¶ 11). No one provides such functionality except the parties. (Id., ¶ 11).
Mr. Valdetaro also states that Vertical has the capacity to sell and service the SiteFlash product. (Valdetaro Decl. Exhibit 6, ¶ 12). This merely requires the hiring of more staff with an increase in customers. The fact that Vertical has not sold SiteFlash for some time does not change the competitive landscape or Vertical's abilities. Vertical sells its other products to many large corporations and non-profit entities without a problem. (Id., ¶ 12).
Interwoven trumpets the fact that Vertical has not sold its SiteFlash system since 2004, arguing that this shows the unavailability of lost profits. On the contrary, this fact is powerful circumstantial evidence in favor of lost profits. It supports the conclusion that Vertical could not make any sales after 2004 because that is when Interwoven entered the market with the infringing TeamSite products. It supports a conclusion that the market in which Interwoven and Vertical compete is essentially a two-supplier market – Vertical and the infringers. Thus, Vertical would indeed have made the sales that Interwoven made over the years.
Vertical sued Microsoft Corp. for infringement by its .NET and SharePoint products. The parties settled that litigation with Microsoft receiving a license under the patents-in-suit. The only product that could possibly be a competitor to the TeamSite and SiteFlash product of the parties is Microsoft's SharePoint. But, as Mr. Valdetaro points out in his Declaration, that product does not have the functionality and does not compete with the parties' products. (See also the deposition transcript of Mr. Rajib Sengupta, Exhibit 10 at p. 134:1-19).
Under 35 U.S.C. § 284, "pon finding for the claimant, the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty . . . ." One important element of Vertical's proofs of a reasonable royalty is an Case3:10-cv-04645-RS Document175 Filed06/03/13 Page20 of 31
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Agreement dated September 8, 2004 between Vertical and a company called Basix1, Inc. ("Basix1"). (9-8-04 Agreement attached as Exhibit 24). This Agreement, despite Interwoven's protestations, is an arms-length transaction that occurred at the same time that Interwoven's infringement began, the time of the hypothetical negotiation under Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F.Supp. 1116, (S.D. N.Y. 1970). (See Gemini Decl., Exhibit 7).
Interwoven attacks the Basix1 Agreement, arguing that Vertical has not received any payments under the agreement and suggesting it was preferential. Whether Vertical received any compensation after entering into the agreement does not in any way diminish the fact that a willing licensor (Vertical) and a willing licensee (Basix1) entered into such an agreement at the time the infringement began. Further, the agreement could not be anything less than an arms-length agreement because the President of Basix1 was a Director of a subsidiary of Vertical, a publicly traded company. Agreements with such individuals are held to a higher standard and cannot be preferential (Valdetaro Decl., Exhibit 6, ¶ 14).
The licensed products under the Basix1 Agreement are "forums and calendar applications of SiteFlash," the Vertical product covered by the patents-in-suit. And, the royalty rate is 10%. What happened later does not diminish these facts. The parties negotiated the license fully expecting that Basix1 would obtain funding and that it would introduce the Enterprise Knowledge Gateway (EKG) product that it intended to market.
Interwoven asserts that Vertical has not made any attempt to apportion the damages to that part of the TeamSite and LiveSite products that uses the patented technology. But, the whole of these products uses the patented technology; and Interwoven uses the patented features to sell the TeamSite product and related components. Copies of the Autonomy website show just that. Vertical has attached those as Exhibit 25; and the Declaration of Mr. Valdetaro identifies Case3:10-cv-04645-RS Document175 Filed06/03/13 Page21 of 31
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the language on this Exhibit which promotes the patented features. (Valdetaro Decl., Exhibit 6, ¶ 10). If anything, Vertical is entitled to application of the entire market value rule to obtain damages for convoyed sales associated with the TeamSite product.
As noted above, Vertical relies on the Declaration of Mr. Gemini (Exhibit 7), its damages expert. But, even without that Declaration, Vertical can, at the very least, rely on the expert report and testimony of Interwoven's expert, should it choose to do so. And, Vertical also seeks a permanent injunction which Interwoven's motion does not even address. On these two additional bases alone, the Interwoven motion on the damage issue completely fails.
IV. ARGUMENT
A. The Standards for Summary Judgment
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment should not be granted unless it is clear that a trial is unnecessary. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). All reasonable factual inferences must be resolved in favor of Vertical (see IMS Technology, Inc. v. Haas Automation, Inc., 206 F.3d 1422, 1429 (Fed. Cir. 2000)) and "any doubt as to the existence of any issue of material fact requires denial of the motion." Omega Engineering, Inc. v. Raytek Corp., 334 F.3d 1314, 1320 (Fed. Cir. 2003). Even doubts about the presence or absence of a factual issue must require denial. Howes v. Med. Components, Inc., 814 F.2d 638, 643 (Fed. Cir. 1987).
B. Standards for Patent Infringement
A determination of infringement requires a two-step analysis. See, e.g., Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473, 1476 (Fed. Cir. 1998). First, the Court must properly construe the claims to determine their scope and meaning. Id. Second, the claim as properly Case3:10-cv-04645-RS Document175 Filed06/03/13 Page22 of 31
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construed, must be compared to the accused device or process. Id. "Literal infringement requires that every limitation of the patent claim be found in the accused device." Gen. Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d. 978, 981 (Fed. Cir. 1997). Determination of infringement, whether literal or under the doctrine of equivalents, is a question of fact. Bai v. L & L Wings, Inc., 160 F.3d 1350, 1353 (Fed. Cir. 1998).
C. The Meaning of "Arbitrary Objects" Does Not Require "Clarification"
In construing the terms "form," "content" and functionality," this Court reviewed the doctrine of prosecution disclaimer in its Claim Construction Order. That analysis is very instructive with respect to the present dispute regarding interchangeability:
The doctrine of prosecution disclaimer restricts the interpretation of claims in order to exclude any interpretations that have been expressly disavowed by the patentee during prosecution. Omega Eng'g, Inc., 334 F.3d at 1324 (adopting the doctrine as a 'fundamental precept' in claim construction). Importantly, the doctrine should not be applied 'where the alleged avowal of claim scope is ambiguous . . . [and fails] to show reasonable clarity and deliberateness.' Id. at 1324-25 (citing N. Telecom Ltd. v. Samsung Elec. Co., 215 F.3d 1281, 1293-95 (Fed. Cir. 2000)). When a patentee disclaims prior art within a patent prosecution, such a disclaimer is, therefore, only controlling for purposes of claim construction if its scope is clear and precise. Pall Corp. v. PTI Techs, Inc., 259 F.3d 1383, 1393-94 (Fed. Cir. 2001) (determining that the scope of disclaimer over prior art was too ambiguous to affect claim construction), vacated on other grounds, 535 U.S. 1109 (2002). Here, the patentee indeed makes numerous references to the separation of form, functionality, and content within the patent prosecution. In doing so, the patentee distinguishes its patent from prior art: During the prosecution for the '744 patent, Vertical asserted that its technology was different from that of the Johnson patent because 'the Johnson catalog class includes both form and content.' (Pl's. Resp. Claim Construction Brief at 7). Vertical further argued that '[o]ne such advantage [of its invention] is that when content, form, and functionality are genuinely separated in the generation of a software application, changes in one do not affect the other.' (Pl's. Resp. Claim Construction Brief at 8).
The prosecution history of the '629 patent contains similar language. In describing the claimed patent, Vertical explains that 'the arbitrary objects are used in generating content, defining form, and executing functionality.' (Pl's. Resp. Claim Construction Brief at 8). Vertical also instructs that the Leshem prior art is distinct from its invention because 'Leshem fails to teach or suggest arbitrary objects Case3:10-cv-04645-RS Document175 Filed06/03/13 Page23 of 31
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comprising separate content, form, and function objects that can be independently modified or changed.' (Pl's. Resp. Claim Construction Brief at 9).
As evidenced throughout the prosecution history, Interwoven is correct in asserting that Vertical repeatedly underscores the invention's ability to separate form, content, and functionality. Nowhere in the prosecution history, however, does Vertical suggest that such separation is necessary for purposes of its patents. There is no indication that form, content, and functionality must be distinct, rather, the components may be distinct. What distinguishes this patent from prior art is not the absolute separation of form, content, and functionality, but the user's ability to separate out either one, two, or all three of these components; prior art only permitted a user to separate out one or two at a time. This reading of the prosecution history is consistent with the remainder of the intrinsic record. The patent language emphasizes that the significance of the invention is the flexibility of being able to separate out the three components, not the necessity of so doing under every circumstance.
Interwoven's inference derived from the specification and prosecution history, that Vertical's patent requires the complete separation of form, content, and functionality is unfounded and cannot overcome the plain meaning of these terms. N. Telecom Ltd., 215 F.3d at 1295 ('[I]nference cannot overcome an ordinary meaning of a claim term.'); see Johnson Worldwide Assocs., Inc. v. Zebco Corp., 175 F.3d 985, 990-91 (Fed. Cir. 1999). Accordingly, form, content, and functionality will each be defined by its ordinary meaning as understood by a person skilled in the art. [Emphasis in original].
With respect to interchangeability, the patentee did indeed make numerous references to the interchangeability of different types of objects, but nowhere in the presentation does the patentee suggest that swapping of different types of objects is necessary for its patents. Interwove, thus, cannot show any clear disavowal.
D. Interwoven's Argument Here Does not Greatly Depart from its Arguments During Claim Construction
Interwoven seeks to circumvent this Court's local rules, including Civil Local Rule 7-9(b)(2), by interjecting its new definition of arbitrary objects, less than three months before trial. It did not seek reconsideration of this Court's claim construction order in a timely manner, either immediately after the order or immediately after the reexaminations. As shown above, it has not Case3:10-cv-04645-RS Document175 Filed06/03/13 Page24 of 31
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even departed from the presentation it made during claim construction briefing. This Court has routinely denied such attempts to "clarify" the claim construction.
In Semiconductor Energy Laboratory Co., Ltd. v. Chi Mei Optoelectronics Corp., No. C 04-04675 MHP, 2006 U.S. Dist. LEXIS 52597 at *2-3 (N.D. Ca. July 28, 2006), the Court, in denying a motion for clarification, held that:
The court agrees with plaintiff that defendants' motion does not depart greatly from the arguments already advanced through claim construction briefing and argument and can be denied on that basis alone.
In Seiko Epson Corp. v. Coretronic Corp., No. C 06-06946 MHP, 2009 U.S. Dist. LEXIS 44064 at *3-4 (N.D. Ca. May 26, 2009), the Court denied a defendant's request for leave to file a motion for reconsideration of the claim construction order, holding that:
There are multiple reasons why leave will not be granted. First, this is not the 'emergence of new material facts . . . occurring after the time of [the] order,' per Civil Local Rule 7-9(b)(2). The supposedly erroneous language at issue is found in Coretronic's own patent application. The application was filed in 2001; Coretronic has had possession of it for the better part of a decade. Even if material, the purported error in claim 5 cannot be said to have emerged after the claim construction order issued. For similar reasons, subparagraph (b)(l) of the local rule does not apply. Under that provision, the party requesting leave must show that 'in the exercise of reasonable diligence' it did not know the fact that the time of the interlocutory order.
Interwoven has less of a basis than the movants in the motions outlined above; and for the reasons stated above, Vertical respectfully requests that the Court deny the motion to "clarify."
E. Interwoven's TeamSite Products Infringe The Asserted Claims Even Under the New Construction Proposed by Interwoven
As explained in Mr. Maly's Declaration, Paragraphs 91 to 97, Exhibit 5, there are seven possible and different types of arbitrary objects, namely, type 1 (content only), type 2 (form only), type 3 (functionality only), type 4 (content and form), type 5 (content and functionality), type 6 (form and functionality), and type 7 (content, form and functionality). The specifications of the patents-in-suit support those definitions. For example, col. 3, lns. 14-19 of the '744 patent Case3:10-cv-04645-RS Document175 Filed06/03/13 Page25 of 31
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specification states that "[t]he present invention provides a system and method for using a hierarchical, arbitrary object framework for generating software applications. The method separates content, form, and functionality of the software application so that each can be accessed or modified independently." The specification continues in col. 3, lns. 58-61, stating that 'ecause the object pointers are not tied in any way to the functionality of the object, an object of one type can be easily replaced with another object of another type."
Interwoven's TeamSite allows the user to create what Interwoven calls "components." Interwoven also supplies a library of canned components. The library contains a component called a "basic button." Mr. Maly shows that it is possible, using Interwoven's instructions, to create a "basic button" that is an arbitrary object of type 6 (form and functionality). This arbitrary object does not have content; and Mr. Maly calls this "button #1." Mr. Maly goes on to show that one can create a second "basic button" that is an arbitrary object of type 7 (form, functionality and content). He calls this second arbitrary object "button #2." He then shows that the TeamSite product allows either arbitrary object to be called solely by name, and that "button #1" can be interchanged with "button #2" simply by calling it a different name.
The above example, and Mr. Maly's other examples, clearly shows the interchange of arbitrary objects of different types. Interwoven's argument that they do not have arbitrary objects because, according to them, arbitrary objects have to be interchangeable with other arbitrary objects of a different type simply fails because they clearly have arbitrary objects (buttons of type 6) that are interchangeable with arbitrary objects of a different type (buttons of type 7) as well as numerous other examples. Also, the name or label that Interwoven uses in association with a certain object or certain groups of objects does not determine the "type" of an object. Therefore, since a fact finder could determine that Interwoven's TeamSite product allows Case3:10-cv-04645-RS Document175 Filed06/03/13 Page26 of 31
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arbitrary objects of different types to be interchangeable, as well as callable solely by name, Interwoven's proposed modification to this Court's construction for "arbitrary objects" is not dispositive and does not change the outcome. Under either construction, a jury can find infringement; and thus under either construction a question of fact remains for the jury.
F. Vertical Has Provided Overwhelming Proof of Lost Profits and Reasonable Royalty Damages
Interwoven argues that Vertical is not entitled to damages as a matter of law. Vertical's damages expert, Mr. Gemini, has used widely accepted methodology to calculate damages based on lost profits or a reasonable royalty, namely the Panduit test, (Panduit Corp. v. Stalin Bros. Fibre Works, Inc., 575 F.2d 1152 (6th Cir. 1978)) and Georgia-Pacific factors, (Georgia Pacific Corp. v. United States Plywood Corp., 318 F.Supp. 1116 (S.D. N.Y. (1970)) respectively. Unsurprisingly, Interwoven disagrees with Mr. Gemini's conclusions, even though his methodology is reliable and admissible and grounded in the facts in evidence.2 However, Interwoven's disagreement does not warrant summary judgment on damages.
Even without all the evidence supporting Vertical's claims and even without its expert's testimony, Vertical may use Interwoven's expert to prove compensatory damages. It may also rely on its claim to a permanent injunction against Interwoven.
G. Vertical Can Prove its Damage Claim Even Without its Expert
35 U.S.C. § 284 provides the statutory floor for damages for infringement: a court "shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty. . . ." Therefore, Interwoven cannot preclude Vertical from recovering
2 Interwoven has filed a Motion to Exclude the Testimony of Mr. Gemini [Dkt. No. 168-3], including similar arguments regarding damages as those presented in its motion for summary judgment. As such, Vertical incorporates its Response to Vertical’s Motion to Exclude the Testimony of Mr. Gemini herein, filed concurrently with this Opposition.
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any damages even if Vertical's damages approach fails. Vertical is entitled, at a minimum, to a reasonable royalty. Even if the Court were to exclude Vertical's damages expert, Vertical would still be entitled to reasonable royalties under § 284. See Dow Chem. Co. v. Mee Indus., Inc., 341 F.3d 1370, 1381-82 (Fed. Cir. 2003) (finding that the district court erred in determining that the patentee could not prove damages without expert testimony, instructing the court to "consider the so-called Georgia-Pacific factors in detail, and award such reasonably royalties as the record evidence will support").
In fact, Interwoven's expert calculated the reasonable royalty to which Vertical would be entitled. Therefore, Vertical could at least recover the amount calculated by Interwoven's expert. But, Vertical would not even be limited to this amount if the Court precludes Mr. Gemini's testimony. Vertical can prove its damages through cross-examination of Interwoven's damages expert. In Versata Software, for example, the district court precluded the patentee's damages expert from testifying. Versata Software, Inc. v. SAP America, Inc., 2013 U.S. App. LEXIS 8838, at *9 (Fed. Cir. May 1, 2013). Through cross-examination of the defendant's expert, the patent owner proffered evidence that it was entitled to $170 million in damages as opposed to the $2 million calculated by defendant's expert. Id. at *30. Although the jury ultimately awarded $140 million, the Federal Circuit affirmed the award as supported by substantial evidence, namely the defendant's expert's testimony. Id. at *33. Vertical could do the same here.
H. The Evidence Supports Damages Based on Vertical's Lost Profits
Interwoven avers that Vertical is not entitled to lost profits as a matter of law. The Panduit test, endorsed by the Court of Appeals for the Federal Circuit in Rite-Hite Corp. v. Kelley Co., Inc., 56 F.3d 1538, 1544 (Fed. Cir. 1995) (en banc) requires proof of: (1) the demand for the patented product, (2) the absence of acceptable non-infringing alternative, (3) the manufacturing and marketing capacity to exploit the demand, and (4) the amount of profit the Case3:10-cv-04645-RS Document175 Filed06/03/13 Page28 of 31
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patentee would have made. Rite-Hite, 56 F.3d at 1545. Once a patentee satisfies the Panduit test, the burden "shifts to the infringer to show the inference is unreasonable for some or all of the lost sales." Id. Curiously, Interwoven does not address the Panduit test in its summary judgment motion. However, Vertical can prove it is entitled to lost profits under the Panduit test, as provided in Mr. Gemini's Declaration (Exhibit 7).
I. Vertical is Statutorily Entitled to a Reasonable Royalty, at a Minimum
Interwoven also argues that it is entitled to summary judgment on damages because Mr. Gemini's reasonable royalty analysis is flawed. In essence, Interwoven's novel argument is that, if the court excludes Mr. Gemini's testimony, Vertical is not entitled to damages in the form of a reasonable royalty as a matter of law. This proposition is fatally flawed because Vertical is statutorily entitled to a reasonable royalty, at a minimum. 35 U.S.C. § 284; see also Dow Chem. Co., 341 F.3d at 1381-82.
Interwoven argues that Mr. Gemini uses an improper royalty base under LaserDynamics, Inc. v. Quanta Comp., Inc., 694 F.3d 51, 67-68 (Fed. Cir. 2012), because Mr. Gemini has not identified the smallest salable patent practicing unit and has thus failed to apportion the damages to that part of the TeamSite products and LiveSite products that use the patented technology. But, the whole of Interwoven's TeamSite and LiveSite products use the patented technology, and Mr. Gemini has cited to advertising materials that support this conclusion. (See Gemini Decl., Exhibit 7, ¶¶ 28-33; Valdetaro Decl., Exhibit 6, ¶¶ 10-11). Thus, contrary to Interwoven's arguments, Mr. Gemini has identified the "smallest salable practicing unit." Therefore, Mr. Gemini was not required to apportion damages.
Vertical used a comparable license agreement in its analysis. Comparable license agreements are those that are "clearly linked to the economic demand for the claimed technology'" and that "provide relevant information about the value of the license to the patent-
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in-suit." Calouri v. One World Techs., Inc., 2012 WL 630346, at *5 (C.D. Cal. Feb. 27, 2012). "[A] perfectly comparable agreement is rarely available." Synthes USA, LLC v. Spinal Kinetics, Inc., 2011 U.S. Dist. LEXIS 93093, at *29 (N.D. Cal. Aug. 19, 2011)(finding that the comparability of an agreement goes to the weight of the evidence and not to admissibility.).
Interwoven's argument that Vertical is not entitled to a reasonable royalty because the Basix1 Agreement is not comparable is without merit. The Basix1 Agreement is clearly comparable because, as Mr. Gemini has provided in his report, it involved an arms-length license to technology of the patents-in-suit. In addition, the Basix1 Agreement is dated September 8, 2004, the time Interwoven's infringement began. Rite-Hite, 56 F.3d at 1554 ("The hypothetical negotiation requires the court to envision the terms of a licensing agreement reached as the result of a supposed meeting between the patentee and the infringer at the time infringement began.").
V. CONCLUSION
In view of the foregoing, Vertical respectfully requests that the Court deny Interwoven's motion in its entirety.
Respectfully submitted, /s/ Vasilios D. Dossas
MARK V. ISOLA (SBN 154614)
[e-mail]
REHON &ROBERTS, APC
830 The Alameda
San Jose, CA 95126
Telephone: [phone]
Facsimile: [phone]
VASILIOS D. DOSSAS (Pro Hac Vice)
[e-mail]
NIRO, HALLER &NIRO
181 West Madison, Suite 4600
Chicago, IL 60602-4515
Telephone: [phone]
Facsimile: [phone]
Attorneys for Vertical Computer Systems, Inc.
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on June 3, 2013 the foregoing
Vertical Computer Systems, Inc.'s Opposition to Interwoven Inc.'s Motion for Summary Judgment
was filed with the Clerk of Court using the CM/ECF system, which will then send a notification of such filing to the following counsel of record.
BIJAL V. VAKIL (Cal. Bar No. 192878)
[e-mail]
NOAH A. BRUMFIELD (Cal. Bar No. 203653)
[e-mail]
JENNIFER P. GOSSAIN (Cal. Bar No. 254174)
[e-mail]
THOMAS C. FLYNN (Cal. Bar. No. 257945)
[e-mail]
WHITE &CASE LLP
3000 El Camino Real
5 Palo Alto Square, 9th Floor
Palo Alto, CA 94306
Telephone: [phone]
Facsimile: [phone]
Jack O. Lever [e-mail] WHITE &CASE LLP 701 Thirteenth Street, NW Washington, DC 20005-3807
Telephone: [phone]
Facsimile: [phone]
Edward G. Poplawski (Cal. Bar No. 113590) [e-mail] Olivia M. Kim (Cal. Bar No. 22832) [e-mail] WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: [phone] Facsimile: [phone]
Attorneys for Plaintiff, Interwoven, Inc.
I certify that all parties in this case are represented by counsel who are CM/ECF participants.
/s/ Vasilios D. Dossas
Attorneys for Vertical Computer Systems, Inc.
NIRO, HALLER & NIRO
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