Vertical Computer Systems Inc (fka VCSY)

[lbman]

Pacer Update from SF CA. Courtesy of JonnyQwan Raging bull# 370070:

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'S OPPOSITION TO INTERWOVEN'S MOTION TO EXCLUDE THE TESTIMONY OF JOHN MALY
DATE: JUNE 20, 2013 TIME: 1:30 P.M.
DEPT: COURTROOM 3 JUDGE: HON. RICHARD SEEBORG
Case3:10-cv-04645-RS Document178 Filed06/03/13 Page1 of 16
VERTICAL'S OPPOSITION TO INTERWOVEN'SMOTION TO EXCLUDE THE
TESTIMONY OF JOHNMALY− CASE NO. 3:10-CV-04645-RS

TABLE OF CONTENTS
Page
I. INTRODUCTION .............................................................................................................. 1
II. THE FACTS ....................................................................................................................... 2
III. ARGUMENT...................................................................................................................... 5
A. Legal Standard ........................................................................................................ 5
B. The Accused Products Did Not Change Over the Relevant Time.......................... 8
C. Mr. Maly has had Access to TeamSite and LiveSite Products Sold by Interwoven to its Customers ...................................................................... 8
D. Interwoven Need Not Sell Computer Hardware to Infringe the '629 Patent-In-Suit .......................................................................................... 10
E. Mr. Maly has Proven that the TeamSite Product Performs Each Step of the Asserted Claims of the '744 Patent and Includes Each Element of the Asserted Claims of the '629 Patent............................................... 11
IV. CONCLUSION................................................................................................................. 12 Case3:10-cv-04645-RS Document178 Filed06/03/13 Page2 of 16
VERTICAL'S OPPOSITION TO INTERWOVEN'SMOTION TO EXCLUDE THE
TESTIMONY OF JOHNMALY− CASE NO. 3:10-CV-04645-RS

TABLE OF AUTHORITIES
Page(s)
CASES
Bai v. L & L Wings, Inc., 160 F.3d 1350 (Fed. Cir. 1998)................................................................................................10
Catalina Marketing International v. Coolsavings.com, Inc., 289 F.3d 801 (Fed. Cir. 2002)....................................................................................................9
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)...................................................................................................................5
DeGeorge v. Bernier, 768 F.2d 1318 (Fed Cir. 1985)...................................................................................................9
Gen. Mills, Inc. v. Hunt-Wesson, Inc., 103 F.3d. 978 (Fed. Cir. 1997).................................................................................................10
Gentry Gallery, Inc. v. Berkline Corp., 134 F.3d 1473 (Fed. Cir. 1998)................................................................................................10
Honeywell International, Inc. v. Universal Avionics Systems Corp., 488 F. 3d 982 (Fed. Cir. 2007)...................................................................................................5
Implicit Networks, Inc. v. F5 Networks, Inc., 2013 U.S. Dist. LEXIS 34984 (N.D. Ca. March 13, 2013) ...................................................6, 7
Marylou Primiano v. Yan Cook, 598 F.3d 558 (9th Cir. 2010) ......................................................................................................5
Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298 (Fed. Cir. 1999)..................................................................................................9
Techsearch, LLC v. Intel Corp., 286 F.3d 1360 (Fed. Cir. 2002)..................................................................................................5
Transmatic, Inc. v. Gulton Indus., 53 F.3d 1270 (Fed.Cir. 1995)...................................................................................................10


I. INTRODUCTION
Interwoven, Inc. ("Interwoven") has elevated a lapse of memory in a day-long deposition of Vertical Computer Systems, Inc.'s ("Vertical") technical expert, Mr. John Maly, into a motion to exclude his testimony and prevent Vertical from presenting its infringement case at trial. Interwoven does not challenge Mr. Maly's competency or his methods of analyzing infringement. It merely tries to mischaracterize and criticize Vertical's proofs and the evidence that Mr. Maly relied upon to prepare his report and his Declaration (Exhibit 5)1 in opposition to the present motion and to the motion for summary judgment filed by Interwoven. Interwoven has not offered any credible non-infringement defense – its defenses amount to contrived claim constructions and procedural challenges meant to prevent a trial on the merits at all cost.
Mr. Maly used a vast number of references to analyze infringement and reach his conclusions in this case. He considered the avalanche of documents produced by Interwoven and selected the ones he needed for support; he read a book titled Definitive Guide to Interwoven TeamSite (Exhibit 11) which completely describes the accused products; he considered the report of Dr. Clifford Kraft (Exhibit 4); he prepared the claim charts for this case (Exhibit 13); and he read the deposition testimony of Messrs. Rajib Sengupta and Shashi Mazumdar, Interwoven's 30(b)(6) designees in this case, (Exhibits 23 and 10, respectively) and others. He did an element-by-element infringement analysis that is an established part of any patent infringement presentation in almost every patent trial.
Mr. Maly did not rely on just a single reference to prepare his report and declaration or to reach his conclusions. He relied on all of the references. He did not address each version of the
1 For efficiency, Vertical has cited to Exhibits 1-25 corresponding to Vertical Computer Systems, Inc.’s Opposition to Interwoven Inc.’s Motion for Summary Judgment, all of which are attached to the Declaration of Vasilios D. Dossas in Support of Vertical's Opposition to Interwoven's Motion for Summary Judgment filed concurrently herewith.
accused TeamSite and LiveSite products because, for purposes of this litigation, those products remained the same from the time infringement began to the present. He did not identify any differences between the literal terms of the asserted claims of the patents-in-suit (Exhibits 1 and 2) and the accused products because there are no differences. If Interwoven had mounted any credible non-infringement defense and identified any differences that it believed to be present, then Mr. Maly would have addressed those differences. But, Interwoven failed to do so.
Interwoven does not challenge the competency and qualifications of Mr. Maly or his methodology. It challenges evidence which it created and upon which Mr. Maly now relies. But, such a challenge should come in the form of cross-examination and contrary evidence – not exclusion. Interwoven seeks a procedural "home run" rather than a proper trial on the merits. Interwoven fails completely; and for the reasons outlined below, Vertical respectfully requests that the Court deny Interwoven's Motion to Exclude the Testimony of Mr. Maly.
II. THE FACTS
Vertical retained Mr. Maly as a technical expert to assist in the investigation of possible infringers of the patents-in-suit. He located the Definitive Guide to Interwoven TeamSite ("the Definitive Guide") (Exhibit 11) and, together with Luiz M. Valdetaro, Chief Technical Officer of Vertical, prepared the claim charts used in this case (Exhibit 13). The Definitive Guide is a 537-page book that describes the accused TeamSite product, specifically Version 6.5, which Interwoven had issued before the 2006 publication of the book. (See The Definitive Guide, Exhibit 11, p. xi; Valdetaro Decl., Exhibit 6, ¶ 9,). The authors of the Definitive Guide are Messrs Brian Hastings and Justin McNeal.
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,
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). The book describes the TeamSite product available at the time which Interwoven had sold to Federal Express.
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 product, and confirmed that the information provided in the Definitive Guide was correct. He further confirmed that the TeamSite product did not materially change from the time of the Definitive Guide to the time of his inspection. (See Kraft Decl., Exhibit 4, ¶ 5; the deposition of Interwoven's 30(b)(6) designee, Mr. Sashi Mazumdar, Exhibit 14 at pp. 14:24-15:7). He reported all this information and the elements and functionality of the TeamSite product to Mr. Maly. (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. He performed an element-by-element analysis of all of the accused claims and provided his opinions on direct and indirect infringement. Vertical has attached Mr. Maly's Declaration as Exhibit 5. (This Declaration also provides 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.) Mr. Maly prepared a 94 page expert report on the issue of infringement and a 111 page rebuttal report in response to the report of Interwoven's technical expert. Mr. Maly's Declaration in opposition to the present motion and to the motion for summary judgment includes his report on infringement and an additional section that addresses infringement under Interwoven's new proposed construction. (See Exhibit 5, and specifically ¶¶ 91 to 97 directed to the new proposed construction.) Mr. Maly provides a technical presentation, not a legal dissertation.

Interwoven deposed Mr. Maly and used its full allotment of time under the Federal Rules of Civil Procedure. As one can easily garner from the deposition transcript (Exhibit 8), Interwoven repeatedly tested Mr. Maly's memory on the vast amount of material that Mr. Maly had reviewed without showing him that material and allowing him to refresh his recollection and answer specific questions on specific material. The quotes Interwoven has extracted from his deposition are all examples of this approach to examination. Even when quoting Mr. Maly's testimony, Interwoven does not quote it accurately. On page 10 of its memorandum, Interwoven provides the following quote with respect to infringement under the doctrine of equivalents which is an alternative ground for infringement:
I think that I have never seen a case where some technicality came up and then it wasn't captured under the Doctrine of Equivalents.
(See page 10 of Interwoven's Memorandum) What Mr. Maly really said was:
I think that I have never seen a case where things were so obviously directly in use where some technicality came up and then it wasn't captured under the Doctrine of Equivalents.
Interwoven left out the highlighted phrase in the above quote.
At other times during the deposition of Mr. Maly, Interwoven manufactured issues which unsurprisingly confused Mr. Maly. On page 5 of its Memorandum, Interwoven quotes deposition testimony relating to Versions of the TeamSite product. Once again, however, version types of the accused product are not material. The products were the same throughout the infringement period.
The arguments that Interwoven presents do not comport with the facts. First, as stated above, the accused products have not changed over the relevant time period for purposes of infringement. (Exhibit 4, ¶ 5; see also, the deposition transcript of Shashi Mazumdar, Interwoven's 30(b)(6) designee, Exhibit 14 at pp. 14:24-15:7). Second, the claims of the '629 patent do not require that Interwoven supply any computer hardware to anyone. These claims mirror the method claims of the '744 patent and define a system. Nowhere do the patents-in-suit describe or claim any computer hardware. Finally, Vertical does not present Mr. Maly as an expert on patent law. That is the province of the Court. Mr. Maly has, however, followed time-tested and court-tested methodology in analyzing all forms of infringement – direct and indirect.
Even if Mr. Maly's report and the Declaration submitted in opposition to the present motion to exclude and in opposition to the concurrent motion for summary judgment did suffer the deficiencies alleged by Interwoven, such deficiencies do not compel exclusion of Mr. Maly's Declaration or testimony. Courts have uniformly denied attempts at exclusion, preferring to allow the moving party to test the evidence by cross-examination and rebuttal. Vertical respectfully requests that the Court similarly decide the present motion and deny it.
III. ARGUMENT
A. Legal Standard
Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony in this case. It provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Fed. R. Evid. 702.
Because the admission of expert testimony is a procedural matter, the law of the Ninth Circuit Court of Appeals governs the admission of expert testimony in the present patent action. Techsearch, LLC v. Intel Corp., 286 F.3d 1360, 1376-77 (Fed. Cir. 2002); Honeywell International, Inc. v. Universal Avionics Systems Corp., 488 F. 3d 982, 994 (Fed. Cir. 2007). In Marylou Primiano v. Yan Cook, 598 F.3d 558, 564-566 (9th Cir. 2010), the Ninth Circuit applied
Fed. R. Evid. 702 to what it characterized as "shaky "opinion testimony in accordance with the U.S. Supreme Court's decision in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993):
The requirement that the opinion testimony 'assist the trier of fact' 'goes primarily to relevance.' For scientific opinion, the court must assess the reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance, but the inquiry is a flexible one. Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion. In sum, the trial court must assure that the expert testimony 'both rests on a reliable foundation and is relevant to the task at hand.' Kumho Tire Co. v. Carmichael holds that the Daubert framework applies not only to scientific testimony but to all expert testimony. It emphasizes, though, that the 'test of reliability is 'flexible' and Daubert's list of specific factors neither necessarily nor exclusively applies to all experts or in every case.' The 'list of factors was meant to be helpful, not definitive,' and the trial court has discretion to decide how to test an expert's reliability as well as whether the testimony is reliable, based on 'the particular circumstances of the particular case.'
* * *
When considering the applicability of Daubert criteria to the particular case before the court, the inquiry must be flexible. Peer reviewed scientific literature may be unavailable because the issue may be too particular, new, or of insufficiently broad interest, to be in the literature. Lack of certainty is not, for a qualified expert, the same thing as guesswork. 'Expert opinion testimony is relevant if the knowledge underlying it has a valid connection to the pertinent inquiry. And it is reliable if the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline.' '[T]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony.' Reliable expert testimony need only be relevant, and need not establish every element that the plaintiff must prove, in order to be admissible.
Thus the court held that even "shaky" evidence should be attacked by cross-examination and contrary evidence – not exclusion. Here, the evidence is anything but "shaky."
This Court has applied Rule 702 in the context of patent litigation. In Implicit Networks, Inc. v. F5 Networks, Inc., Case Nos. C10-3365 SI and C10-4234 SI, 2013 U.S. Dist. LEXIS 34984 (N.D. Ca. March 13, 2013), the Court considered a patent owner's challenge to the testimony of an accused infringer's expert on infringement. Even though in the present motion it
is the accused infringer who has challenged the testimony of the patent owner's expert on infringement, the analysis provided by this Court applies to the present motion as well:
As an initial matter, Implicit moves to exclude the expert testimony of Juniper's non-infringement expert, Dr. Peter Alexander. Juniper opposes that motion and, in response, cross-moves to exclude the expert testimony of Implicit's infringement expert, Dr. Scott Nettles. Implicit attacks Dr. Alexander's testimony on two grounds. The first ground is that Dr. Alexander did not independently explore how the accused products operate [*36] and, therefore, his opinions are baseless. The second ground is that when Dr. Alexander testified that Implicit's expert Dr. Scott Nettles failed to prove by a 'preponderance of the evidence' that Juniper infringed, Dr. Alexander is not only incorrect, he is attempting to usurp the jury's function.
Federal Rule of Evidence 702 provides that expert testimony is admissible if 'scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.' Fed. R. Evid. 702. Expert testimony under Rule 702 must be both relevant and reliable. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). When considering evidence proffered under Rule 702, the trial court must act as a 'gatekeeper' by making a preliminary determination that the expert's proposed testimony is reliable. Elsayed Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1063 (9th Cir. 2002), amended by 319 F.3d 1073 (9th Cir. 2003).
Regarding Implicit's first argument, the Court finds that given the scope of Dr. Alexander's role – which was to rebut Implicit's expert's infringement analysis – Dr. Alexander was not required to conduct the in-depth 'infringement analysis' [*37] Implicit contends he should have undertaken. Moreover, Implicit's arguments do not establish that Dr. Alexander's opinions are unreliable such that they should be excluded, but go more to the weight a jury may give to Dr. Alexander's opinion (assuming Dr. Alexander's understanding of the accused products is relevant to his assertion that Dr. Nettles' opinions are deficient). With respect to the second argument, the Court finds that Implicit's contentions regarding the deficiencies in Dr. Alexander's testimony (i.e., how Dr. Alexander criticized Dr. Nettles' conclusions and the basis for those criticisms) go to the weight a jury might give Dr. Alexander's conclusions and not their admissibility. See, e.g., Daubert, 509 U.S. at 596 ('Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.'). Finally, the fact that Dr. Alexander opines that Dr. Nettles has not established infringement by a preponderance of the evidence, is not a basis on which to exclude his testimony. See, e.g., Symbol Technologies, Inc. v. Opticon, Inc., 935 F.2d 1569, 1575 (Fed. Cir. 1991) [*38] ('testimony on the ultimate issue of infringement is permissible in patent cases').


This analysis applies here and compels denial of Interwoven's motion.
B. The Accused Products Did Not Change Over the Relevant Time
In attacking Mr. Maly's report and testimony, Interwoven has made a number of mischaracterizations and contrived arguments. It states that Mr. Maly did not compare the claims to any existing Interwoven product. It argues that the accused TeamSite and LiveSite products have changed over the years and that Mr. Maly did not take that into account. But, as shown above, the accused products did not change over the relevant time period of infringement, 2004 to the present. Mr. Maly carefully selected documents that describe the accused product and that prove infringement. Mr. Maly relied on the inspection conducted by Dr. Kraft of the current TeamSite product. He also relied upon the Definitive Guide which describes the TeamSite and LiveSite products available during the 2004 to 2006 time period. Dr. Kraft confirmed that there are no material differences between the two and so did Mr. Mazumdar (Exhibit 4, ¶ 5; Exhibit 14 at pp. 14-24-15:7). Thus, Mr. Maly did compare the claims to the existing TeamSite product.
Interwoven quotes Mr. Maly's deposition testimony where it quizzes Mr. Maly on the Version numbers of TeamSite and when Interwoven first offered those Versions for sale (See Interwoven's Memorandum, Dkt No. 169-3 at p. 5). Whether Mr. Maly could recite from memory each of the Version numbers is simply not relevant. It is a contrived issue meant to discredit Mr. Maly and his testimony. TeamSite did not change at all for purposes of this lawsuit from the time infringement began in 2004 to the present.
C. Mr. Maly has had Access to TeamSite and LiveSite Products Sold by Interwoven to its Customers
Mr. Maly and Vertical learned of the infringing TeamSite products through the 537-page book titled The Definitive Guide to Interwoven TeamSite, authored by Messrs. Hastings and McNeal, two employees of Federal Express, a purchaser of the TeamSite productand introductory pages of the book included in Exhibit 11). As outlined above, 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). (See also Mr. Hasting's deposition transcript attached as Exhibit 12).
On page xi of The Definitive Guide, the Table of Contents shows that the subject matter of the book was the 6.5 Version of the TeamSite product and that the authors had familiarity with that version through their employment at Federal Express. Federal Express was an Interwoven customer that had purchased the TeamSite and LiveSite products and used them in its business. Not only did Interwoven assist Federal Express in installing and practicing that system, but its officers, founder and personnel helped two Federal Express employees write a book about the system – a book that is over 500 pages long.
Mr. Maly also reviewed Interwoven's documents, selecting those that are the most relevant to the patents-in-suit. Those documents show the pervasive use of the patented technology throughout; and they confirm the fact that every accused product that Interwoven sold throughout the infringement period used the patents-in-suit. Therefore, Mr. Maly's report is not deficient in any of the ways suggested by Interwoven.
Interwoven has also had knowledge of the inventions of the patents-in-suit as early as the time that infringement began. 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)
D. Interwoven Need Not Sell Computer Hardware to Infringe the '629 Patent-In-Suit
Interwoven has seized upon some language that appears in the preamble of the claims in the '629 patent-in-suit to argue that those claims require computer hardware. For example, the preamble of claim 21 of the '629 patent describes an environment in which a computer program operates and then recites the three elements of the computer program. The hardware tersely recited in the preamble does not appear in the body of the claim and it does not give life and meaning into the body, i.e., the three recited elements. Nowhere in the specifications of the patents-in-suit does the inventor even suggest that computer hardware components are part of his invention. The method and software system runs on a computer, but that does not make a computer part of the invention.
Generally, the preamble of a claim is non-limiting. DeGeorge v. Bernier, 768 F.2d 1318, 1322, n.3 (Fed Cir. 1985). As the Federal Circuit has explained,
f…the body of the claim fully and intrinsically sets forth the complete invention, including all of its limitations, and the preamble offers no distinct definition of any of the claimed invention's limitations, but rather merely states, for example, the purpose or intended use of the invention, then the preamble is of no significance to claim construction because it cannot be said to constitute or explain a claim limitation.
Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999). A claim preamble is limiting only "if it recites essential structure or steps, or if it is 'necessary to give life, meaning, and vitality' to the claim." Catalina Marketing International v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002). As explained above, the patents-in-suit do not make any computer hardware component a part of the invention, and thus the reference in a claim preamble is merely definition of the environment on which the method and software system of the inventions run. (Even if such components were part of the invention (and they clearly are not), Interwoven would still be an infringer, indirectly, because the accused products cannot run on anything except a computer.)
E. Mr. Maly has Proven that the TeamSite Product Performs Each Step of the Asserted Claims of the '744 Patent and Includes Each Element of the Asserted Claims of the '629 Patent
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 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). If the patent owner proves literal infringement, the analysis ends. Transmatic, Inc. v. Gulton Indus., 53 F.3d 1270, 1275 (Fed.Cir. 1995). A patentee need only rely on the doctrine of equivalents if he cannot prove literal infringement. Id. 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).
Mr. Maly's Declaration does indeed provide an element-by-element comparison between the asserted claims of the patent-in-suit and the accused TeamSite and LiveSite products. infringement requires that every limitation of a patent claim be found, and Mr. Maly found them, literally. Mr. Maly also conducts an analysis under the alternative theory of doctrine of equivalents. Vertical need not rely on the doctrine of equivalents if it proves literal infringement which it has done here. Interwoven argues that Mr. Maly has not shown any difference between the claim terms and the accused device. That is true. It has proved the opposite – there are no differences. Its doctrine of equivalents argument is in hypothetical form because of that outcome. If Interwoven had identified any differences, Mr. Maly would have shown in detail that those differences are entirely insubstantial, and not supported by the claim language.
Throughout his reports, testimony and Declaration, Mr. Maly used widely accepted methodology to show that Interwoven infringes. Interwoven cannot preclude his testimony on that basis that its interpretation of the facts or law is different.
IV. CONCLUSION
In view of the foregoing, Vertical respectfully requests that the Court deny Interwoven's motion to preclude the testimony of John Maly.
Respectfully submitted, /s/ Vasilios D. Dossas
VASILIOS D. DOSSAS (Pro Hac Vice)
[e-mail]
NIRO, HALLER &NIRO
181 West Madison, Suite 4600
Chicago, IL 60602-4515
Telephone: [phone]
Facsimile: [phone]
MARK V. ISOLA (SBN 154614)
[e-mail]
REHON &ROBERTS, APC
830 The Alameda
San Jose, CA 95126
Telephone: [phone]
Facsimile: [phone]
Attorneys for Vertical Computer Systems, Inc.

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on June 3, 2013 the foregoing
VERTICAL'S OPPOSITION TO INTERWOVEN'S MOTION TO EXCLUDE THE TESTIMONY OF JOHN MALY
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.
Case3:10-cv-04645-RS Document178 Filed06/03/13 Page16 of 16