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INTRODUCTION
Sarah Barrows (Bar No. 253278)
barrowss@gtlaw.com
Stephen Ullmer (Bar No. 277537)
ullmers@gtlaw.com
GREENBERG TRAURIG LLP
4 Embarcadero Center, Suite 3000
San Francisco, CA 94111
Tel: (415) 655-1300
Fax: (415) 707-2010
James J. DeCarlo (pro hac vice)
decarloj@gtlaw.com
GREENBERG TRAURIG LLP
200 Park Avenue
Florham Park, NJ 07932
Tel: (973) 360-7900
Fax: (973) 301-8410
Kevin J. O’Shea (pro hac vice)
osheak@gtlaw.com
GREENBERG TRAURIG LLP
77 West Wacker Drive
Chicago, IL 60601
Tel: (312) 456-8400
Fax: (312) 456-8435
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
e.Digital Corporation,
Plaintiff,
v.
Apple Inc.
Defendant.
Case No. 3:13-cv-00785 DMS-WVG
APPLE’S REPLY IN SUPPORT OF ITS
MOTION FOR JUDGMENT ON THE
PLEADINGS PURSUANT TO RULE
12(c)
DEMAND FOR JURY TRIAL
Hearing Date: August 9, 2013
Time: 1:30 p.m.
Assigned to: Hon. Dana M. Sabraw
Courtroom: 13A
ORAL ARGUMENT REQUESTED
Apple showed in its Motion that Plaintiff does not have any plausible basis for
alleging that Apple directly or indirectly infringes any of the asserted patents. Plaintiff
argues in its opposition that fact questions prevent judgment in Apple’s favor, and that
Plaintiff should be allowed to take discovery to support its infringement contentions. But
if that were the standard, Rule 12(c) would be unnecessary because any patentee could
withstand judgment at the early stage of a litigation by merely stating, as Plaintiff does,
that the accused products meet every limitation of the asserted claims, regardless of the
outlandish nature of the patentee’s contentions. That is why Plaintiff is required to show a
plausible legal infringement theory for its direct and indirect infringement claims.
Plaintiff cannot do that, and the Court should enter judgment in Apple’s favor.
II. ARGUMENT
A. Plaintiff’s PICs Violate The Local Patent Rules And The Court’s Order
The Local Patent Rules require Plaintiff to come forward first with its PICs so that
Apple would not be left to guess as to which of its products allegedly infringe which
asserted claims or, most importantly, why its products allegedly infringe the asserted
claims. This also allows Apple to focus its invalidity arguments. As a result, the parties
are able to develop their claim construction positions at this early stage. O2 Micro Int’l,
Ltd. v. Monolithic Power Sys., 467 F.3d 1355, 1364 (Fed. Cir. 2006) (explaining that
patent local rules are “designed specifically to require parties to crystallize their theories
of the case early in the litigation so as to avoid the shifting sands approach to claim
construction.”); Ameranth, Inc. v. Pizza Hut, Inc., No. 12cv729 JLS (NLS), 2013 WL
3894880, *2 (S.D. Cal. July 26, 2013) (“The purpose of local patent rules is to streamline
discovery and ‘provide structure to discovery and enable the parties to move efficiently
toward claim construction and the eventual resolution of their dispute.’”) & *4 (“the
purpose of infringement contentions is to alert the alleged infringer which theories the
patentee believes its pre-filing investigation supports.”); see also Raylon, LLC v. Complus
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APPLE’S REPLY IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO RULE 12(C)
Data Innovations, Inc., 700 F.3d 1361, 1368 (Fed. Cir. 2012) (affirming Rule 11 sanctions
where the patentee ignored its “duty to ‘stop and think,’ and to investigate whether its
positions were objectively baseless [when questions about the patentee’s infringement
contentions arose], but [instead] it opted to ignore grappling with the incongruence raised
by visual comparison of the accused devices with the plain language of the claims.”).
Plaintiff nonetheless argues that it was only required to provide PICs and claim
charts for one Apple product, regardless of the fact that no single Apple product is
representative of all of the accused product families. Plaintiff also argues that Apple
should have known the specific products that Plaintiff intended to accuse of infringing
each of the asserted patents. (Oppn. at 6-8.) But only Plaintiff knew which products it
intended to accuse of infringing which patents. While Plaintiff identified certain products
in its Complaint, that did not limit Plaintiff’s infringement contentions. Indeed, Plaintiff
stated in its Complaint that the accused products would “include but are not limited to”
the listed products. (Dkt. No. 1, Complaint, ¶¶ 14, 23, 34 (emphasis added).) Thus,
Apple could not know which of its product families, much less which specific products,
Plaintiff intended to accuse of infringing which of the claims of each asserted patent,
much less Plaintiff’s substantive bases for its contentions, before Plaintiff served its PICs.
Apple still does not know the bases for Plaintiff’s infringement allegations for any
product other than the accused laptops. Apple explained in its Motion that the accused
product families operate differently with respect to the various claimed functionalities,
(Mtn. at 11), and Plaintiff offers no response. To the contrary, rather than rely on its PICs,
claim charts and supporting documentation relating to the “representative” accused laptop,
Plaintiff now relies on new User Manuals for two of the accused iPods. (Oppn. at 17 &
Exs. B, C.) Plaintiff did not produce either of these User Manuals, or identify them in any
manner, in connection with its PICs and, therefore, Apple could not know that Plaintiff
intended to rely upon them. Moreover, Plaintiff accuses Apple of “misplaced reliance on
the PICs,” (Oppn. at 9), without explaining what Apple should rely on if not Plaintiff’s
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APPLE’S REPLY IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO RULE 12(C)
PICs. Cf. Ameranth, No. 12cv729 JLS (NLS), 2013 WL 3894880, at *4 (“the purpose of
infringement contentions is to alert the alleged infringer which theories the patentee
believes its pre-filing investigation supports.”).
At the very least, the Court should order Plaintiff to withdraw from its PICs all
Apple products other than the identified laptops. Alternatively, the Court should order
Plaintiff to serve supplemental claim charts with a representative product from each of the
other accused Apple product families – iPod, iPod Touch, iPad, and iPhone – assuming
that Plaintiff has any non-frivolous and non-futile infringement contentions for those
products. See Raylon, 700 F.3d at 1368.
B. Plaintiff’s Arguments Regarding The ’774 Patent Are Unsupported And
Contrary To Plaintiff’s Prior Arguments Regarding The Asserted
Claims
Plaintiff must show a cognizable legal theory that the accused Apple products
infringe the asserted ’774 patent claims, including the “removable, interchangeable” and
“sole memory” limitations. See Moore v. Donahoe, No9. C 11-05517 LB, 2013 WL
322561, *9 (N.D. Cal. Jan. 28, 2013) (recognizing that a Rule 12(c) motion may be
predicated on “the lack of a cognizable legal theory”) (quoting Balistreri v. Pacifica
Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). Apple showed in its Motion that there is
no basis for arguing that the accused laptops meet either of these limitations. Plaintiff
responds by requesting leave to amend its PICs, and ignoring both the ’774 patent and its
own prior arguments regarding the scope of these limitations.
Although Plaintiff identified in its claim charts the elements of the accused Apple
laptops that allegedly meet the “removable, interchangeable” limitation in claim 33 of the
’774 patent, (Ex. 2, PICs, at 3; Ex. 8, ’774 patent claim charts, at 21), Plaintiff now
disavows those claim charts, and argues that Apple should not have relied on them.
(Oppn. at 9-10.) Plaintiff also now argues—for the first time—that this limitation is not
really a limitation and that it was included in the PIC claim charts merely because the
1 Exhibits 1-15 were submitted with Apple’s Motion. (Dkt. No. 35.)
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words appear in the claim. (Id.) However, Plaintiff included this limitation in its claim
charts and Apple can—indeed must—rely on those claim charts. Plaintiff cannot avoid its
own contentions simply because they confirm that the accused Apple computers cannot
infringe the ’774 patent under even the broadest claim construction.
Plaintiff’s new argument that the “removable, interchangeable” limitation is not
relevant is also contrary to its prior arguments regarding this limitation. Plaintiff
previously argued that, based on the ’774 patent specification, “interchangeable” means
“capable of ready transfer to another device.” (Ex. 3, Plaintiff’s Opening Claim
Construction Brief, Case No. 09-cv-02578-MSK-MJW (Dist. Col.), Dkt. No. 296, at 17,
39-40 (proposing claim constructions for segments of the preamble).) Apple showed in
the present Motion that the documents Plaintiff relied upon for its PICs confirm that the
flash memory in the accused laptops is not capable of transfer to another device. (Mtn. at
15.) Plaintiff has no response, other than to argue that some “inference” exists that the
flash memory may be transferable to another device. (Oppn. at 13.) But inferences are
not cognizable legal theories. Plaintiff has no evidence to support this contention.
Plaintiff also ignores the ’774 patent specification, which defines the flash memory
module as a device that can be inserted into and removed from the claimed device at will.
(Mtn. at 13-14.) Plaintiff again has no meaningful response, except to argue that the
accused laptop can be physically torn apart “using a common screwdriver.” (Oppn. at 11
n.3 (citing Ex. 12 at 3).) However, the professionals that performed the tear down that
Plaintiff relies upon used a special tool made specifically for this purpose—i.e., a “5-point
Pentalobe bit.” (Ex. 12 at 3; see also Ex. 13 at 2 (referring to the “unknown sized, Appleproprietary
Pentalobe screws on the back of the new Air” and offering the specialized tool
for sale).)
Plaintiff’s attempt to equate a professional tear down of a laptop computer, which is
necessary to access the internal flash memory, with “pressing a stop and/or eject button”
on the dictation device claimed in the ’774 patent, in order to remove the tape cassette,
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underscores just how far Plaintiff needs to expand the scope of the “removable,
interchangeable” limitation to argue that the accused Apple laptops meet this limitation.
(Oppn. at 11.) Plaintiff offers no support for such an unreasonable construction, and
indeed there is none in the ’774 patent or its prosecution history. See Raylon, 700 F.3d at
1368 (“Reasonable minds can differ as to claim constructions and losing constructions can
nevertheless be nonfrivolous. But, there is a threshold below which a claim construction
is ‘so unreasonable that no reasonable litigant could believe it would succeed….’”).
Regarding the “sole memory” limitation, Plaintiff admits that its documents show
that the accused Apple computers have RAM. (Oppn. at 13-14; Mtn. at 15-16.) In an
effort to avoid the consequences of this admission, Plaintiff focuses on the “role” of RAM
in the accused product. (Oppn. at 13-14.) However, as Apple explained in its Motion,
and as the Defendants explained in their collateral estoppel motion, the specific “role” of
RAM in the accused Apple laptops is irrelevant; it is enough that the accused products use
RAM. (Mtn. at 15-16.) Therefore, Plaintiff cannot avoid the conclusion that the accused
laptops do not infringe the ’774 patent.
Plaintiff’s inferences and suggestions do not support its infringement contentions.
Plaintiff has no cognizable legal theories, and the Court should grant judgment in Apple’s
favor with respect to the ’774 patent.
C. The Accused Apple Products Cannot Infringe The ’737 Patent
1. The Accused Apple Products Cannot Infringe Either Claim 1 Or
Claim 4 Of The ’737 Patent
The accused Apple laptops are not “hand held” recording devices, as that limitation
is used in claims 1 and 4 of the ’737 patent. Apple showed in its Motion that, pursuant to
the ’737 patent and its prosecution history, the claimed “hand held” device is a small
device that a user can hold and operate with one hand. (Mtn. at 17.) Plaintiff overcame
anticipatory prior art cited by the Examiner during prosecution by arguing that the claimed
“hand held” device was “a hand-held dictation device (approximately the size of a credit
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APPLE’S REPLY IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO RULE 12(C)
card),” which met the need for “a portable dictation device.” (Ex. 4, Claim Construction
Order, at 6 (quoting Plaintiff’s Amendment submitted during prosecution2).) Plaintiff
cannot ignore the admissions that it made during prosecution to obtain its patents, and it
has no cognizable legal basis for arguing that the accused Apple laptops are “hand held”
recording devices.
Furthermore, Plaintiff cites new evidence that it did not produce with its PICs to
argue that certain iPods allow voice recording. (Oppn. at 17.) Initially, this argument
underscores that Plaintiff’s PICs are insufficient with respect to the non-computer accused
Apple products insofar as the cited User Manuals show that the relevant products function
very differently than the accused Apple laptops. (Id., Exs. B & C.) Moreover, these new
User Manuals confirm Apple’s position that these products do not meet the
“multifunctional switch assembly” and “separate record switch assembly” limitations in
claim 1 of the ’737 patent. Plaintiff alleges in its PICs that the “multifunctional switch
assembly” limitation is met by a trackpad/keyboard combination, while the “separate
record switch assembly” is met by a trackpad/software combination. (Mtn. at 18.) Even
accepting Plaintiff’s construction of these limitations, none of the non-computer accused
Apple products has all of these elements. Plaintiff does not try to argue otherwise.
(Oppn. at 18.) Instead, Plaintiff argues that the Court’s Order prohibits Plaintiff from
putting forth evidence, even though Plaintiff cites new evidence that is not in its PICs to
support its “recording device” argument. (Id. at 17-18.) Plaintiff has no cognizable legal
2 Plaintiff made this admission during prosecution of the application that issued as the
’774 patent. The ’737 patent claims priority to that application. (Ex. 5, ’737 patent.)
Moreover, Plaintiff has equated the hand held devices claimed in the ’737 and ’774
patents. (See, e.g., Ex. 3, at 2 (“The ’774 patent is the first of a series of patents issued to
e.Digital and its predecessors-in-interest aimed at handheld audio recording and playback
devices that use removable flash memory to store recorded audio.”); Ex. 1, ’774 patent, at
2:55-57 (“A still further object of this invention is to develop a record/playback device
which is approximately the size of a business card….”).)
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theory regarding these limitations, and Plaintiff should not be allowed to proceed with this
claim.
Finally, Apple explained in its Motion that Plaintiff’s PICs do not show any
cognizable legal basis for arguing that the accused Apple computers, much less any of the
other accused Apple products, meet the “searching for an end of a last recorded message”
limitation in claims 1 and 4 of the ’737 patent. (Mtn. at 18-19.) Plaintiff responds that the
statements in its claim charts are sufficient. (Oppn. at 18-19.) However, the documents
that Plaintiff cites in its claim charts do not support those statements. For example,
Plaintiff cites references 1-3 in the last paragraph of its arguments. (Ex. 9, ’737 patent
claim charts, at 6, 10.) These references are (1) a marketing piece showing the unique
design of the MacBook Air, (2) a picture of a MacBook Air, and (3) a QuickTime audio
record screenshot. (Id. at 21 (identifying references); see also id. at 1 (showing reference
1), 2 (showing references 2 and 3).) Plaintiff also includes excerpts of references 6 and 7
in its claim charts. (Id. at 6, 10.) However, neither those excerpts nor any other part of
the cited references state that the accused computers search for the end of a last recorded
message, and record a new message after such end. (Id.) Plaintiff’s only response is that
portions of the cited references “suggest” that the claim limitations are met, and that the
limitations presumably are met “at least sometimes.” (Oppn. at 19 and 20.) However,
like Plaintiff’s “inferences,” its unsubstantiated “suggestions” are not substitutes for
cognizable legal theories. Plaintiff has no evidence to support its arguments regarding this
limitation with respect to the accused computers, much less any of the other accused
products, and it cannot sustain its infringement allegations with respect to the ’737 patent.
Plaintiff’s reliance on Ameranth v. Papa John’s USA, Inc., No. 12cv729 JLS (NLS),
2013 WL 2285171 (S.D. Cal. Mar. 26, 2013), is misplaced. In a more recent opinion in a
related consolidated case, Magistrate Judge Stormes explained that in the decision that
Plaintiff cites, Judge Sammartino addressed the patentee’s infringement contentions in the
context of claim construction issues presented in connection with motions for partial
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summary judgment. Ameranth, No. 12cv729 JLS (NLS), 2013 WL 3894880, *3. Judge
Sammartino did not address whether the contentions were sufficient under the Local
Patent Rules. Therefore, Magistrate Judge Stormes reviewed the infringement contentions
and found that they violated the Local Patent Rules in several respects, particularly in the
patentee’s lack of specificity. Id. at *3-*9.
2. The Accused Apple Computers Do Not Initiate A Memory
Integrity Test When The Internal Flash Memory Is Inserted
Plaintiff concedes that, in claims 6, 9 and 13 of the ’737 patent, the claimed
memory integrity test is initiated when the user inserts the flash memory into the device.
(Oppn. at 20 (“performing a flash memory medium integrity test … requires no manual
involvement of the user other than inserting the flash memory module into the plug
assembly of the device.”); Ex. 5, ’737 patent.) However, Apple explained in its Motion
that Plaintiff contended in its PICs that the accused computers perform a memory integrity
test when the computer is turned on – not when the flash memory is inserted into the
device. (Mtn. at 19-20; Ex. 9, ’737 patent claim chart, at 14.)
Here again, Plaintiff does not have any response. (Oppn. at 20-21.) Instead,
Plaintiff argues about the “way” in which flash memory is inserted into the claimed
device. (Id.) But that has nothing to do with the claimed requirement that the device
initiate a memory integrity test when flash memory is inserted into the device. Neither
Plaintiff’s PICs nor its opposition identifies any evidence that the accused laptops meet
this limitation. To the contrary, Plaintiff’s claim charts state the opposite.
Plaintiff has not, and cannot, put forth a cognizable legal theory as to why any of
the accused Apple products infringe any of the asserted ’737 patent claims. Accordingly,
the Court should enter judgment in Apple’s favor regarding the ’737 patent.
D. The Accused Apple Products Cannot Infringe The ’170 Patent
Apple showed in its Motion that the accused iPod Touch, iPad and iPhone products
cannot meet the “means for selecting an edit point within a message” limitation. (Mtn. at
9 CASE NO. 13CV00785 DMS WVG
APPLE’S REPLY IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO RULE 12(C)
21.) Plaintiff agrees that this is a means-plus-function limitation but argues that it
deserves a broader construction. (Oppn. at 22.) Specifically, Plaintiff argues that the
corresponding structure in the ’170 patent specification is not the “rocker pad” discussed
at column 4, lines 54-61 and Figures 1A and 1B, (Mtn. at 21), but, rather, the
corresponding structure comprises the switch terminals underneath the rocker pad, as
discussed at column 4, line 62 through column 6, line 10 and Figure 1B. (Oppn. at 22.)
But Plaintiff has not come forth with any evidence, either in its PICs or its Opposition, to
support an argument that any of the accused iPod Touch, iPad or iPhone products meet the
“means for selecting” limitation under either claim construction. This is not surprising
insofar as the capacitive touchscreen on these products is neither the disclosed switch, nor
an equivalent of that switch. Therefore, Plaintiff has no cognizable legal theory why any
of these products infringe claim 1 of the ’170 patent.
Plaintiff has had more than enough time, including before filing its Complaint, to
develop its infringement arguments for each of the accused Apple products. But Plaintiff
has not been able to develop plausible arguments that each of the accused products meets
every limitation in the relevant asserted claims. Therefore, the Court should enter
judgment in Apple’s favor on those claims, as set forth here and in Apple’s Motion.
E. Plaintiff’s Indirect Infringement Claims Violate The Local Patent Rules
Plaintiff must provide more than boilerplate descriptions of acts of indirect
infringement, such as “advising others to use the Accused Products in an infringing
manner”; advertising and promoting the use of the Accused Products in an infringing
manner”; and “distributing instructions … that guide users to use the Accused Products in
an infringing manner.” (Ex. 2, PICs, at 6); cf. Ameranth, No. 12cv729 JLS (NLS), 2013
WL 3894880, *6 (holding that statements such as “intentionally encouraging direct
infringement,” “provides instruction and direction regarding the use of the Accused
System,” and “widely advertises and promotes [the accused functionality]” are insufficient
to meet the requirements of the S.D. California Local Patent Rules in connection with
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APPLE’S REPLY IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO RULE 12(C)
indirect infringement contentions); see also Global-Tech Appliances, Inc. v. SEB S.A., ---
U.S.---, 131 S.Ct. 2060, 2069 (2011) (confirming that the accused inducer must know that
the third party conduct that it induced constituted infringement).
Plaintiff argues that the Local Patent Rules exempt Plaintiff from the indirect
infringement pleading requirements. (Oppn. at 23-24 (“neither Patent L.R. 3.1.d nor the
CMO require e.Digital to assert the lack of substantial non-infringing uses in the
preliminary infringement contentions.”).) But a showing that the accused product has no
substantial non-infringing uses is a necessary part of a claim for contributory
infringement. 35 U.S.C. § 271(c); i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 851
(Fed. Cir. 2010); Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1327 (Fed. Cir.
2009).
Plaintiff has not presented, and cannot present, a cognizable theory for either
contributory or induced infringement, and the Court should dismiss Plaintiff’s indirect
infringement claims.
III. CONCLUSION
Plaintiff’s Preliminary Infringement Contentions do not present a cognizable legal
theory showing that Apple infringes any of the asserted claims, applying even the broadest
reasonable claim construction, and Plaintiff has not presented any reasonable argument to
sustain its claims. Therefore, the Court should dismiss Plaintiff’s infringement claims
against Apple, as set forth here and in Apple’s Motion.
DATED: August 2, 2013 GREENBERG TRAURIG, LLP
By s/ Sarah Barrows
Sarah Barrows (Bar No. 253278)
barrowss@gtlaw.com
Stephen Ullmer (Bar No. 277537)
ullmers@gtlaw.com
GREENBERG TRAURIG LLP
4 Embarcadero Center, Suite 3000
San Francisco, CA 94111
Tel: (415) 655-1300
Fax: (415) 707-2010
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11 CASE NO. 13CV00785 DMS WVG
APPLE’S REPLY IN SUPPORT OF ITS MOTION FOR JUDGMENT ON THE PLEADINGS PURSUANT TO RULE 12(C)
James J. DeCarlo (pro hac vice)
decarloj@gtlaw.com
GREENBERG TRAURIG LLP
200 Park Avenue
Florham Park, NJ 07932
Tel: (973) 360-7900
Fax: (973) 301-8410
Kevin J. O’Shea (pro hac vice)
osheak@gtlaw.com
GREENBERG TRAURIG LLP
77 West Wacker Drive
Chicago, IL 60601
Tel: (312) 456-8400
Fax: (312) 456-8435
Case 3:13-cv-00785-DMS-WVG Document 43 Filed 08/02/13 Page 12 of 13
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and
foregoing document has been served on August 2, 2013 to all counsel of record who are
deemed to have consented to electronic service via the Court’s CM/ECF system per Civil
Local Rule 5.4. Any counsel of record who have not consented to electronic service
through the Court’s CM/ECF system will be served by electronic mail, first class mail,
facsimile and/or overnight delivery.
By s/ Sarah Barrows
Sarah Barrows
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