Академический Документы
Профессиональный Документы
Культура Документы
2
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
I/P ENGINE, INC.,
Plaintiff-Cross Appellant,
v.
AOL INC., GOOGLE INC., IAC SEARCH &
MEDIA, INC., GANNETT COMPANY, INC., AND
TARGET CORPORATION,
Defendants-Appellants.
No. 2013-1307, -1313
DEFENDANTS-APPELLANTS OPPOSITION TO I/P ENGINES
PETITION FOR RE-HEARING EN BANC
Dave Nelson
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
500 West Madison St., Suite 2450
Chicago, IL 60661
(312) 705-7400
(312) 705-7401 (fax)
David A. Perlson
Antonio R. Sistos
Margaret P. Kammerud
Joshua L. Sohn
QUINN EMANUEL URQUHART
& SULLIVAN LLP
50 California Street, 22nd Floor
San Francisco, California 94111
(415) 875-6600
(415) 875-6700 (fax)
Attorneys for Defendants-Appellants AOL Inc., Google Inc., IAC
Search & Media, Inc., Gannett Company, Inc., and Target Corporation.
Case: 13-1307 Document: 142 Page: 1 Filed: 11/03/2014
01980.51928/6304679.2
Daryl L. Joseffer
KING & SPALDING LLP
1700 Pennsylvania Avenue NW
Suite 200
Washington, D.C. 20006
(202) 737-0500
(202) 626-3737 (fax)
Adam M. Conrad
KING & SPALDING LLP
100 N Tryon Street
Suite 3900
Charlotte, NC 28202
(704) 503-2600
(704) 503-2622
Attorneys for Defendant-Appellant Google Inc.
Case: 13-1307 Document: 142 Page: 2 Filed: 11/03/2014
01980.51928/6304679.2 i
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
I/P ENGINE, INC.,
Plaintiff-Cross Appellant,
v.
AOL INC., GOOGLE INC., IAC SEARCH &
MEDIA, INC., GANNETT COMPANY, INC., AND
TARGET CORPORATION,
Defendants-Appellants.
No. 2013-1307, -1313
CERTIFICATE OF INTEREST
Counsel for the Defendants-Appellants certifies as follows:
1. The full name of every party or amicus represented by me is:
AOL Inc., Google Inc., IAC Search & Media, Inc., Gannett Corporation, Inc.,
Target Corporation
2. The name of the real party in interest (if the party named in the caption is
not the real party in interest) represented by me is:
Gannett Co., Inc.
3. All parent corporations and any publicly held companies that own 10
percent or more of the stock of the party or amicus curiae represented by me
are:
a) AOL Inc. AOL has no corporate parent. Filings made with the Securities and
Exchange Commission indicate that Dodge & Cox and FMR LLC each own ten
percent (10%) or more of AOLs stock.
Case: 13-1307 Document: 142 Page: 3 Filed: 11/03/2014
01980.51928/6304679.2 ii
b) Google Inc. None.
c) IAC Search & Media, Inc. IAC/InterActiveCorp, a publicly traded company,
owns all of the stock of IAC Search & Media, Inc.
d) Gannett Company, Inc. None.
e) Target Corporation None.
4. The names of all law firms and the partners or associates that appeared for
the party or amicus now represented by me in the trial court or agency or are
expected to appear in this court are:
Quinn Emanuel Urquhart & Sullivan: David A. Perlson, David L. Bilsker, Robert
Wilson, David A. Nelson, Jennifer Kash, Emily C. OBrien, Margaret P.
Kammerud, Antonio R. Sistos, Howard Chen, Jennifer Ghaussy, Jennifer Polse,
Joshua L. Sohn, Sarah Agudo; Kaufman & Canoles: Stephen E. Noona; Finnegan
Henderson Farabow Garrett & Dunner: Robert L. Burns, II; King and Spalding:
Daryl L. Joseffer, Adam M. Conrad.
Dated November 3, 2014 Respectfully submitted,
By: /s/ David A. Perlson
David A. Perlson
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
50 California Street, 22
nd
floor
San Francisco, CA 94131
Telephone: (415) 875-6344
Facsimile: (415) 875-6700
davidperlson@quinnemanuel.com
Attorney for Defendants-Appellants
Case: 13-1307 Document: 142 Page: 4 Filed: 11/03/2014
01980.51928/6304679.2 iii
TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
SUMMARY OF THE COURTS OPINION ............................................................ 2
ARGUMENT ............................................................................................................. 5
I. THIS NON-PRECEDENTIAL DECISION IS AN INHERENTLY
POOR CANDIDATE FOR EN BANC REVIEW ........................................... 5
II. I/P ENGINES ALLEGATION THAT THE COURT ERRED BY
REVIEWING THE ENTIRE OBVIOUSNESS QUESTION DE
NOVO DOES NOT WARRANT EN BANC REVIEW .................................. 6
III. THERE IS NO CONFLICT IN AUTHORITY REGARDING WHO
SHOULD APPLY THE COMMON SENSE OF A SKILLED
ARTISAN ...................................................................................................... 12
CONCLUSION ........................................................................................................ 15
Case: 13-1307 Document: 142 Page: 5 Filed: 11/03/2014
01980.51928/6304679.2 iv
TABLE OF AUTHORITIES
Page
Cases
Amgen Inc. v. Hoechst Marion Roussel, Inc.,
469 F.3d 1039 (Fed. Cir. 2006) .......................................................................... 12
Constant v. Adv. Micro-Devices, Inc.,
848 F.2d 1560 (Fed. Cir. 1988) .......................................................................... 10
Johns Hopkins Univ. v. CellPro, Inc.,
152 F.3d 1342 (Fed. Cir. 1998) .......................................................................... 11
KSR Intl Co. v. Teleflex Inc.,
550 U.S. 398 (2007) .................................................................................. 9, 13, 14
Medichem, S.A. v. Rolabo, S.L.,
437 F.3d 1157 (Fed. Cir. 2006) .......................................................................... 11
Mintz v. Dietz & Watson, Inc.,
679 F.3d 1372 (Fed. Cir. 2012) .......................................................................... 13
Perfect Web Tech., Inc. v. InfoUSA, Inc.,
587 F.3d 1324 (Fed. Cir. 2009) .......................................................................... 13
PharmaStem Therapeutics, Inc. v. ViaCell, Inc.,
491 F.3d 1342 (Fed. Cir. 2007) .......................................................................... 10
Statutes
Fed. R. App. P. 35(a)(1) ....................................................................................... 5, 15
Fed. R. App. P. 35(a)(2) ............................................................................................. 5
Fed. Cir. Rule 32.1(d) ................................................................................................ 5
Fed. Cir. Rule 35 .................................................................................................... 2, 5
Case: 13-1307 Document: 142 Page: 6 Filed: 11/03/2014
1
INTRODUCTION
I/P Engines En Banc Petition expresses disagreement with this Courts
decision, but provides no basis for the extraordinary step of en banc review.
Although I/P Engine asserts that this Court contravened precedent by
explicitly reject[ing] deferential review for factual findings underlying a
determination of obviousness (Pet., 4), I/P Engine cannot point to a single
statement from the Courts decision purporting to apply de novo review to any
underlying factual question. Thus, I/P Engines real complaint is not with the
standard of review that the Court applied, but merely with the obviousness
conclusions that the Court reached based on the factual record before it. Needless
to say, I/P Engines dissatisfaction with the outcome of this case would be no basis
for en banc review, even if the Courts decision were incorrect. And it is not.
I/P Engine also alleges an intra-circuit split about whether the common sense
of a skilled artisan is a legal question for the court or a factual question for the jury.
But there is no such split. The common sense of a skilled artisan is something that
a court can look to in answering the legal question of obviousness, and the factual
record developed in the litigation helps inform the court about what would be
within the common sense of a skilled artisan. All of the precedents cited by I/P
Engine are consistent with this settled framework.
I/P Engine itself previously told this Court that Defendants ha[ve] not
pointed to one significant, complex, unique or precedent-setting issue within [their]
Case: 13-1307 Document: 142 Page: 7 Filed: 11/03/2014
2
appeal. (Dkt. 23 at 6.) In apparent agreement with I/P Engine, this Court
designated its decision non-precedential. That designation reflects the absence of
any important legal holdings in the decision and confirms that this case is a very
poor candidate for en banc review. As this Courts Practice Notes state: A
petition for rehearing en banc is rarely appropriate if the appeal was the subject of
a nonprecedential opinion by the panel of judges that heard it. Practice Note to
Fed. Cir. Rule 35. This case is no exception to that rule, as the Court applied
settled legal principles to the record of this case.
SUMMARY OF THE COURTS OPINION
As this Courts opinion explained, the two Asserted Patents relate to a
method for filtering Internet search results that utilizes both content-based and
collaborative filtering. (Slip Op., 3.) Specifically, the asserted claims describe a
filter system that combines content and collaborative data in filtering each
informon or information item for relevance to a users query. (Id.)
The district court submitted interrogatories to the jury concerning factual
determinations relevant to obviousness, but did not ask the jury to opine on the
ultimate question of obviousness, which is a question of law. (A4170-72.) The
district court then issued a brief, two-page order reciting the jurys findings and
declaring the asserted claims non-obvious, but did not provide any reasoning or
analysis to bridge the gap between the jurys subsidiary findings and the courts
own holding of non-obviousness. (A39-40.)
Case: 13-1307 Document: 142 Page: 8 Filed: 11/03/2014
3
In reviewing the district courts decision, this Court noted that Defendants
had proffered three lead obviousness references Rose, WebHound, and Fab.
(Slip Op., 6.) All three references combined content-based and collaborative
filtering to filter information items. For example, the Court quoted a passage from
Fab explaining that [b]y combining both collaborative and content-based filtering
systems, many of the weaknesses in each approach can be eliminated. (Id. at 9
(quoting J.A. 5511).) And the Court quoted a passage from WebHound explaining
that content-based and automated collaborative filtering are complementary
techniques, and the combination of [automated collaborative filtering] with some
easily extractable features of documents is a powerful information filtering
technique for complex information spaces. (Id. (quoting J.A. 5427) (Courts
brackets).) Indeed, the Court noted that I/P Engine does not dispute that the prior
art disclosed hybrid content-based and collaborative filtering. (Id. at 10.)
Nonetheless, as the Court explained, I/P Engine did contend that it would
not have been obvious to a person of ordinary skill in the art to filter items for
relevance to a users query using combined content and collaborative data. (Id.
(emphasis added).) In the words of I/P Engines litigation metaphor, references
like Rose, WebHound, and Fab threw search results over a proverbial wall to a
filtering system, but did not also throw the search query over the wall for use in
the filtering process. (Id. (citing I/P Engine Appeal Br. at 6-7; 40-43.)) Thus, the
obviousness question for the Court was whether it would have been obvious to
Case: 13-1307 Document: 142 Page: 9 Filed: 11/03/2014
4
bridge the gap between the claims and the obviousness references by performing
content/collaborative filtering for relevance to the query i.e., throwing the query
over the wall along with the search results so that the query could be used in the
filtering process.
The Court cited several pieces of record evidence to conclude that it would
indeed have been obvious to use the query in the filtering process. First, the Court
quoted the shared specification for the Asserted Patents themselves, which
admitted in the Background section that conventional search engines initiate a
search in response to an individual users query and use content-based filtering to
compare the query to accessed network informons. (Id. (Courts emphasis).)
Given that its own patents acknowledge that using the original search query for
filtering was a conventional technique, I/P Engine cannot now evade invalidity
by arguing that integrating the query into the filtering process was a non-obvious
departure from the prior art. (Id. at 10-11.)
Second, the Court cited a separate reference, the Culliss reference, and noted
that the plain language of Culliss discloses using content and collaborative filtering
to filter Internet articles for relevance to a users search query. (Id. at 11.)
Third, the Court reasoned that [v]ery basic logic dictates that a users
search query can provide highly pertinent information in evaluating the overall
relevance of search results. (Id. at 14.) Because the query was readily available
and closely correlated to the overall relevance of search results and the prior art
Case: 13-1307 Document: 142 Page: 10 Filed: 11/03/2014
5
unequivocally disclosed hybrid content-based/collaborative filtering retaining the
query for use in filtering combined content and collaborative data was entirely
predictable and grounded in common sense. (Id. at 15.)
Based on all this evidence and reasoning, the Court found that all asserted
claims were invalid for obviousness.
ARGUMENT
I. THIS NON-PRECEDENTIAL DECISION IS AN INHERENTLY
POOR CANDIDATE FOR EN BANC REVIEW
A petition for rehearing en banc is rarely appropriate if the appeal was the
subject of a nonprecedential opinion by the panel of judges that heard it. Practice
Note to Fed. Cir. Rule 35. As this case confirms, that rule makes good sense. One
of the two reasons that the Federal Rules give for en banc review is to secure or
maintain uniformity of the courts decisions, by preventing an erroneous panel
decision from steering the law in an anomalous direction. Fed. R. App. P.
35(a)(1). Nonprecedential decisions have no precedential force and do not bind
future panels, so they cannot steer the law. See Fed. Cir. Rule 32.1(d).
The other reason that the Federal Rules give for en banc review is that the
proceeding involves a question of exceptional importance. Fed. R. App. P.
35(a)(2). As its own prior statements make clear, I/P Engine cannot satisfy this
criterion, either. Specifically, when resisting Defendants motion to re-designate
Defendants as Appellants instead of Cross-Appellants, I/P Engine told the Court
Case: 13-1307 Document: 142 Page: 11 Filed: 11/03/2014
6
that Defendants appeal does not raise any issues that are significant, complex,
unique or precedent-setting. (Dkt. 23 at 6.) I/P Engine further told the Court that
the validity issues in Defendants appeal are typically party- and patent-specific,
and are not likely to impact numerous future cases. (Id.) Yet I/P Engine now
says that this appeal requires resolution of . . . legal questions of exceptional
importance. (Pet., 1.) These inconsistent positions underscore why I/P Engine
has not shown entitlement to the extraordinary remedy of en banc review.
II. I/P ENGINES ALLEGATION THAT THE COURT ERRED BY
REVIEWING THE ENTIRE OBVIOUSNESS QUESTION DE
NOVO DOES NOT WARRANT EN BANC REVIEW
Even apart from its non-precedential nature, this Courts decision does not
warrant en banc review. I/P Engine argues that the decision controverts precedent
by applying de novo review to the entire obviousness question, without giving
deference to the factual findings below. (Pet., 4.) But that assertion is baseless.
The Court faithfully applied precedent, in holding that [w]hether the subject
matter of a patent is obvious is a question of law and is reviewed de novo. The
factual findings underlying an obviousness determination include: (1) the scope
and content of the prior art; (2) the differences between the claimed invention and
the prior art; (3) the level of ordinary skill in the art; and (4) any objective indicia
of non-obviousness. (Slip Op., 8 (citations omitted).) This formulation is
completely consistent with the lengthy summary of case law that I/P Engine recites
Case: 13-1307 Document: 142 Page: 12 Filed: 11/03/2014
7
on pages 6-8 of its Petition. Nowhere did the Court state that it reviewed these
underlying factual questions de novo, and I/P Engine does not show otherwise.
Unable to point to any statement where the Court purported to apply de novo
review to the underlying factual questions, I/P Engine simply misstates the Courts
opinion. For example, I/P Engine argues that the Court explicitly rejected
applying substantial evidence review to the jurys factual findings when the Court
actually stated the following: I/P Engine . . . argues that on appeal the only
question is whether substantial evidence supports the jurys findings. There are a
number of reasons why we do not find this reasoning persuasive. (Pet., 4 (quoting
Slip Op., 16) (I/P Engines ellipses).) Thus, the Court simply did not find
persuasive I/P Engines argument that the only question is whether substantial
evidence supports the jurys findings. (Slip Op., 16.) Instead, the Court held that
whether the jurys findings are supported by substantial evidence was not the only
question in determining obviousness, given the legal nature of the ultimate
obviousness question and the record in this case.
There were good, case-specific reasons for this holding. First, as the Court
noted, some of the jury findings were inconsistent. (Id.) Second, some of the jury
findings supported obviousness, not non-obviousness. (Id.) And third, while the
jury made underlying determinations as to the differences between the asserted
claims and the prior art, it did not address the ultimate legal conclusion as to
obviousness. Thus, while the jury found that the prior art did not disclose all of the
Case: 13-1307 Document: 142 Page: 13 Filed: 11/03/2014
8
elements of the asserted claims, it never determined whether it would have been
obvious to one skilled in the art to bridge any differences between the prior art and
the claimed invention. (Id. at 17.) Because the jury did not even reach the issue
of whether the differences between the claims and the art would have been obvious
to overcome, I/P Engines argument that the only question is whether substantial
evidence supports the jurys findings was clearly wrong. (Id.)
I/P Engines real complaint is not with the Courts legal framework, but
merely with the outcome of this case. I/P Engine disagrees with the Courts
holding that the asserted claims are obvious, so it argues that the Court must have
reviewed the jurys factual findings de novo to reach its holding. But the Courts
decision neither applied nor depended on de novo review of the jurys findings.
I/P Engine contends that [t]he jury found that there were patentable
differences between the scope of the claimed invention and what was known in the
prior art at the time of the claimed invention. (Pet., 10 (I/P Engines emphasis).)
But this is simply untrue. The jury was presented with a special interrogatory as to
the second Graham factor what difference if any existed between the claimed
invention and the prior art and was given two choices. The what was known in
the prior art language that I/P Engine points to was in the portion of the special
interrogatory that the jury did not adopt:
Case: 13-1307 Document: 142 Page: 14 Filed: 11/03/2014
9
(A4170.) What the jury checked was explicitly limited to five specific prior art
referencesnot the far more general what was known in the prior art that I/P
Engine represents to the Court. (Id.) That is important because, unlike
anticipation, obviousness depends in part on the general background knowledge of
a person skilled in the art, and the creative inferences such a person would make,
not only on the content of specific prior art references. See, e.g., KSR Intl Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007); Slip Op., 14-15.
In ruling that the differences between the claims and the art would have been
obvious to overcome, the Court relied on the admission from the Asserted Patents
that filtering for relevance to the query was a conventional prior art technique.
(Slip Op., 10-11.) This ruling did not contravene any jury findings, because the
jury interrogatories never addressed any admissions from the Asserted Patents
when determining the scope and content of the prior art. In any event, no jury
finding could have erased the admission from the Asserted Patents that filtering for
relevance to the query was a conventional prior art technique. It is well-settled that
Case: 13-1307 Document: 142 Page: 15 Filed: 11/03/2014
10
[a] statement in a patent that something is in the prior art is binding on the
applicant and patentee for determinations of anticipation and obviousness.
Constant v. Adv. Micro-Devices, Inc., 848 F.2d 1560, 1570 (Fed. Cir. 1988).
The Court did also cite several passages from the Culliss reference to hold
that Culliss plainly discloses using combined content and collaborative data when
analyzing information for relevance to a users search query. (Slip Op., 11.) In
that one respect, this Court did reject a jury finding, but it did not do so under an
improper standard of review. Nowhere did the Court state that it applied de novo
review to the jurys findings on Culliss. Rather, the Court quoted several passages
from Culliss to explain why Culliss plainly discloses content analysis and
filtering for relevance to a query. (Slip Op., 11-12.) That is perfectly consistent
with the substantial evidence standard. This Court has held that it is proper to rely
on the plain language of a prior art reference to find that it discloses certain
elements for invalidity, even if a jury held otherwise. See PharmaStem
Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1361 (Fed. Cir. 2007) (granting
JMOL of invalidity, despite contrary jury verdict, where the jury verdict and the
testimony of Plaintiffs expert cannot be reconciled with statements made by the
inventors in the joint specification and with the prior art references themselves).
Case: 13-1307 Document: 142 Page: 16 Filed: 11/03/2014
11
The Courts finding that Culliss plainly discloses the contested elements, despite
the contrary jury finding, is just an application of this settled rule.
1
Finally, despite I/P Engines references to Judge Chens dissent, Judge Chen
never suggested that the Court applied de novo review to the jurys factual
findings. Instead, Judge Chen noted that we should tread lightly when reviewing
a legal conclusion reached by the trial court that rests upon a jurys findings of
fact. (Slip Op., 2 (Chen, J., dissenting).) And Judge Chen stated that, [b]ased on
the record, he would not have disturbed the jurys factual findings on Culliss. (Id.
at 4 n.1.) But that simply expressed Judge Chens disagreement with the result the
Court reached in this case, based on this specific factual record.
I/P Engines lengthy footnote on pages 10-11, purporting to list substantial
evidence . . . distinguishing each prior art reference from the asserted claims,
confirms that I/P Engines real quarrel is with the conclusions the Court reached,
1
Equally unavailing is I/P Engines complaint that the panel majority sua
sponte treated Culliss as a stand-alone obviousness reference . (Pet., 9 n.3.) First,
there is no such thing as a stand-alone obviousness reference. Rather, in an
obviousness analysis the prior art must be considered as a whole for what it
teaches. (Slip Op., 9 n.5 (quoting Medichem, S.A. v. Rolabo, S.L., 437 F.3d
1157, 1166 (Fed. Cir. 2006) (emphasis in original)).) Second, Defendants asserted
Culliss for obviousness, as both the trial transcript (A3164-65) and the jurys
Graham interrogatories (A4170-71) make clear. While Defendants also asserted
Culliss for anticipation, anticipation is the epitome of obviousness. Johns
Hopkins Univ. v. CellPro, Inc., 152 F.3d 1342, 1357 n.21 (Fed. Cir. 1998). So the
fact that Defendants argued anticipation based on Culliss does not make it
improper for the Court to consider Culliss as part of the overall art for obviousness.
Case: 13-1307 Document: 142 Page: 17 Filed: 11/03/2014
12
given the extensive factual record in the footnote.
2
(Pet., n.5.) The Courts
decision is correct, for the reasons the Court gave. But even if it were not, en banc
review would not be warranted just to revisit the Courts application of settled
legal principles to the record in this case. As Judge Lourie has stated, not every
error by a panel is enbancable. A panel is entitled to err without the full court
descending upon it. Amgen Inc. v. Hoechst Marion Roussel, Inc., 469 F.3d 1039,
1043 (Fed. Cir. 2006) (Lourie, J., concurring in denial of re-hearing en banc).
III. THERE IS NO CONFLICT IN AUTHORITY REGARDING WHO
SHOULD APPLY THE COMMON SENSE OF A SKILLED ARTISAN
I/P Engines second ground for en banc review is that the Court needs to
resolve the conflict among this Courts decisions regarding who should apply the
common sense of a person having ordinary skill in the art. (Pet., 4.) I/P Engine
argues that some of this Courts opinions treat common sense as part of the legal
2
I/P Engines amici also assail the Courts obviousness conclusion
arguing, for example, that the Asserted Patents were confirmed in re-examination.
(See Amicus Br. of i4i et al., at 8.) But amici do not mention that every re-
examination was an ex parte re-examination, in which Defendants had no ability to
defend the initial claim rejections against I/P Engines subsequent attacks. Nor did
the re-examinations (individually or collectively) include the full range of prior art
asserted in this litigation and cited in the Courts opinion.
One of I/P Engines amici also lacks credibility before this Court. Professor
Dan Ravicher the author of the Patent Law Professors amicus brief is an active
trader in the stock of I/P Engines corporate parent, Vringo, Inc. The Appendix to
this brief attaches a lengthy email string in which Mr. Ravicher sought consent for
an amicus brief, did not deny Defendants stated position that he owns stock in
Vringo, and threatened to have Defendants counsel disbarred or reported to law
enforcement for pointing out his ownership in Vringo (ownership that Mr.
Ravicher repeatedly disclosed in public online articles, which are also attached).
Case: 13-1307 Document: 142 Page: 18 Filed: 11/03/2014
13
question of obviousness while others correctly hold[] that common sense is a
factual issue requiring record support showing that this knowledge would reside
in the ordinarily skilled artisan. (Id. at 14 (emphasis in original).)
This supposed conflict is wholly illusory. Common sense, like obviousness
itself, is informed by the factual record but applied by a court to the legal question
of whether a skilled artisan would have found the claims obvious. For example,
I/P Engines cited case of Mintz v. Dietz & Watson, Inc., 679 F.3d 1372, 1377
(Fed. Cir. 2012) states that invocation of the words common sense cannot
invalidate a patent without any record support showing that this knowledge would
reside in the ordinarily skilled artisan. The other cases cited by I/P Engine
recognize that courts can use whatever common sense is supported by the record to
find claims obvious, either at summary judgment or JMOL. Even the cases that I/P
Engine puts on the fact side of the line, like this Courts Perfect Web case and
the Supreme Courts KSR case, involve courts invoking common sense to
invalidate patents at summary judgment. See KSR, 550 U.S. at 407, 427; Perfect
Web Tech., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1325 (Fed. Cir. 2009). So these
cases are perfectly consistent with the rule that courts can invoke a skilled artisans
common sense to determine whether claims are obvious as a matter of law, and
that deciding what concepts would have been within a skilled artisans common
sense is informed by the factual record at summary judgment or trial.
Case: 13-1307 Document: 142 Page: 19 Filed: 11/03/2014
14
Indeed, KSR refutes I/P Engines suggestion that this Court should grant en
banc review because the Supreme Court will otherwise grant certiorari. (Pet., 5-6,
13 n.6.) The Supreme Court has already addressed the standards for determining
obviousness, in KSR itself. KSR clearly holds that a court must determine whether
the differences between the claims and the art would have been obvious for a
skilled artisan to overcome. KSR, 550 U.S. at 407 (If a court, or patent examiner,
conducts this analysis and concludes the claimed subject matter was obvious, the
claim is invalid under 103.) KSR likewise holds that the court may determine
and apply the common sense of a skilled artisan in making this analysis.
3
Id. at
418 ([A] court can take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.).
The Court here faithfully followed this rule. It cited numerous aspects of the
record, including expert testimony, prior art, and the Asserted Patents themselves,
to determine that a skilled artisan would have found it obvious to filter for
relevance to the query. (Slip Op., 14-15.) So not only does I/P Engine fail to show
any split in authority, it fails to show any legal error in the Courts decision.
4
3
It is telling that I/P Engine does not discuss KSR until the final paragraph
of its Petition. If the Courts opinion were truly inconsistent with KSR the
leading Supreme Court case on obviousness one would expect I/P Engine to
discuss KSR sooner and in greater depth.
4
I/P Engine suggests a split in authority as members of this Court have
conflicting views on the proper deference to be given to jury findings that underlie
obviousness and the appropriateness of appellate fact-finding. (Pet., 4 (emphasis
Case: 13-1307 Document: 142 Page: 20 Filed: 11/03/2014
15
Contrary to I/P Engines position that common sense can only be invoked by
the fact-finder, Judge Chens dissent also recognized that a court may invoke
common sense in reviewing obviousness. The dissent simply noted that the court
must exercise caution in doing so, and disagreed with the majority about whether
on this record it was would have been common sense to use the query for
filtering. (Slip Op., 2 (Chen, J., dissenting ) (I find that the majoritys use of
common sense to bridge the gap between the prior art and the claims is
unsupported by sufficient evidence and reasoning.).) Again, such determinations
based on a case-specific factual record are not a proper subject of en banc review.
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court
deny I/P Engines Petition for Re-Hearing En Banc.
DATED: November 3, 2014
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
By /s/ David A. Perlson
David A. Perlson
50 California Street, 22
nd
floor
San Francisco, CA 94111
Telephone: (415) 875-6344
Facsimile: (415) 875-6700
davidperlson@quinnemanuel.com
Attorneys for Defendants-Cross Appellants
added).) It supports this argument by contrasting two Federal Circuit opinions
with a dissent. (Id. at 4-5.) But en banc review is intended to ensure uniformity of
decisions, Fed. R. App. P. 35(a)(1), not dissenting views of individual judges.
Case: 13-1307 Document: 142 Page: 21 Filed: 11/03/2014
PROOF OF SERVICE
I hereby certify that on November 3, 2014, I caused to be served
electronically on all counsel of record the foregoing Opposition to I/P Engines
Petition for Re-Hearing En Banc, together with the Appendix thereto.
DATED: November 3, 2014
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
By /s/ David A. Perlson
David A. Perlson
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
50 California Street, 22
nd
floor
San Francisco, CA 94111
Telephone: (415) 875-6344
Facsimile: (415) 875-6700
davidperlson@quinnemanuel.com
Attorney for Defendants-Appellants
Case: 13-1307 Document: 142 Page: 22 Filed: 11/03/2014
APPENDIX
Case: 13-1307 Document: 142 Page: 23 Filed: 11/03/2014
1
From: Adam Mossoff [amossoff@gmu.edu]
Sent: Friday, October 24, 2014 1:37 PM
To: David Perlson; Daniel B. Ravicher
Cc: J oe.Re; Craig Nard; risch@law.villanova.edu; dschwartz@kentlaw.iit.edu;
tholbrook@emory.edu; sean.seymore@vanderbilt.edu; ccotropi@richmond.edu
Subject: RE: 13-1307 I/P Engine, Inc. v. AOL Inc.: Request for Consent to File Amicus Brief
In email communications with Craig Nard earlier this month, I specifically stated that I would not be joining the
proposed amicus brief drafted by Mr. Ravicher given my substantive disagreements with the content of the brief.
I have never had any communication with Mr. Ravicher about this brief. I had assumed my demurer to the
invitation to join the brief would have been passed on to Mr. Ravicher by Mr. Nard.
It is inappropriate and unprofessional for me to be included in the list of amici in email communications with
counsel in this case given my express disavowal of the invitation to join the brief.
I am forced to share my earlier email with Nr. Nard so that I know with absolute certainty that I am not being
misrepresented in communications or in the final brief. I am traveling at the moment, but I will do so immediately
upon my return to the office later today or this evening when I will have access to my email client on my
computer.
Sincerely,
Adam Mossoff
Sent from my Samsung Galaxy Note 3
Adam Mossoff
Professor of Law
Co-Director of Academic Programs & Senior Scholar,
Center for the Protection of Intellectual Property
George Mason University School of Law
-------- Original message --------
From: David Perlson
Date:10/24/2014 1:21 PM (GMT-05:00)
To: "Daniel B. Ravicher"
Cc: "J oe.Re" ,Craig Nard ,risch@law.villanova.edu,dschwartz@kentlaw.iit.edu,Adam Mossoff
,tholbrook@emory.edu,sean.seymore@vanderbilt.edu,ccotropi@richmond.edu
Subject: RE: 13-1307 I/P Engine, Inc. v. AOL Inc.: Request for Consent to File Amicus Brief
Mr.Ravicher,
IamccingtheotherproposedamiciProfessorsNard,Risch,Schwartz,Mossoff,Holbrook,Seymore,andCotropia.Wefeelitwould
bestifeveryonewasonthesamepagesothatthereisnomisunderstanding.Tothisend,Ihaveincludedthefullstringwithourprior
communicationsbelowsothattheotherproposedamicicanreview.
DefendantsobjecttoyouMr.Ravicherhavinganyroleinanamicusbriefforthiscase,duetoyourhistoryofactivetradinginthe
stockofI/PEnginescorporateparent,Vringo.Thus,Defendantsobjecttoyouservingasanamedamicus,andDefendantsalsoobject
toyouhavinganyroleindraftingorotherwiseassistinginanyamicusbrieffiledunderothersnames.This,ofcourse,extendstoany
Case: 13-1307 Document: 142 Page: 24 Filed: 11/03/2014
2
workproductthatyoucreatedinthepast.Thus,DefendantswouldobjectifyouhandedadraftbriefthatyoucreatedtoProfessors
Nard,Risch,Schwartz,Mossoff,Holbrook,Seymore,and/orCotropiaforthemtofileundertheirnames,evenifyouhaveno
involvementwiththisbriefgoingforward.
Bycontrast,ifProfessorsNard,Risch,Schwartz,Mossoff,Holbrook,Seymore,and/orCotropiawishtowriteandfileanamicusbriefab
initiothathasnothingtodowithanypastorfutureinvolvement,support,orworkbyyou,thenwehavenoobjectiontothat.
WenotethatFederalCircuitRules29and47.4requireanamicusbrieftolistallamici,allrealpartiesininterestbesidesnamedamici,
andallattorneyswhoparticipatedintheamicusbrief.Weexpectthatanybrieffiledbyanyoftheabovementionedprofessorswould
complywiththeserulesandfairlydisclosewhetheryouhadanyroleinthecreationofsuchbrief.Similarly,weexpectthatthese
professorswouldnotfileabriefthatyouwereatallinvolvedwithorcontributedtoandtelltheCourtthatthisbriefisunopposed,since
Defendantsdoopposeanyamicusbriefthatyouhadanyinvolvementwithorcontributionto.
David
OriginalMessage
From:ravicher@gmail.com[mailto:ravicher@gmail.com]OnBehalfOfDanielB.Ravicher
Sent:Thursday,October23,20141:28PM
To:DavidPerlson
Cc:Joe.Re;CraigNard
Subject:Re:131307I/PEngine,Inc.v.AOLInc.:RequestforConsenttoFileAmicusBrief
DoDefendantsbelievetheothersevenindividualsarenotproperamiciaswell?IfIwerenota
namedamici,wouldDefendantsthenconsenttothebrief?Idonotbelieveyou'vecitedanybasisto
objecttotheothersevenindividuals,butIwanttomakesureIamclearaboutDefendant'sposition
regardingtheirpropriety.
OnThu,Oct23,2014at4:21PM,DavidPerlson<davidperlson@quinnemanuel.com>wrote:
>Forreasonsalreadystated,Defendantsdonotconsent.Thedisclosurebelowdoesnotrefuteour
previouslystatedunderstandingbasedonpublicallyavailableinformationthatyouhavebeenan
activetraderandspeculatorofVringostockandthusnotaproperamicus.
>
>OriginalMessage
>From:ravicher@gmail.com[mailto:ravicher@gmail.com]OnBehalfOf
>DanielB.Ravicher
>Sent:Wednesday,October22,20142:15PM
>To:DavidPerlson;Joe.Re
>Cc:CraigNard
>Subject:Re:131307I/PEngine,Inc.v.AOLInc.:RequestforConsent
>toFileAmicusBrief
>
>Messrs.PearlsonandRe,
>
>ProfessorsNard,Risch,Schwartz,Mossoff,Holbrook,SeymoreandIherebyenlargeourrequestfor
consenttoincludeProfessorChristopherA.CotropiaoftheUniversityofRichmondSchoolofLaw.
>
>Mr.Re,Pleaseletmeknowatyourconveniencewhetheryouenlargeyourconsenttoinclude
ProfessorCotropia.
>
>Mr.Perlson,Pleaseletmeknowatyourconveniencewhetheryoumaintainyouoppositiontoour
requestforconsent.Inthehopesthatitmayhelpyoureconsideryourposition,pleasebeadvised
thatourmotionandbriefwillmakethefollowingdisclosure:
>
>"Nopartyorcounselforapartyhasauthoredanyportionofthisbrief,andnooneotherthan
amicihasmadeafinancialcontributiontoit.OneofamicihasafinancialinterestinDefendant
AppellantGoogle.NoneofamicihasafinancialinterestinPlaintiffCrossAppellantI/PEngine."
>
>AsImentionedpreviously,ProfessorNardandImaycontinuetoenlargeourrequestforconsentto
includeadditionalpersons.
>
Case: 13-1307 Document: 142 Page: 25 Filed: 11/03/2014
3
>Warmregards,
>
>DanielB.Ravicher,Esq.
>2000PonceDeLeonBlvd,Ste600
>CoralGables,Florida33134
>dan@ravicher.com786.505.1205
>
>OnThu,Oct16,2014at1:48PM,DavidPerlson<davidperlson@quinnemanuel.com>wrote:
>>Mr.Ravicher,Googlecontinuestoopposeforthereasonsalreadystated.
>>
>>OriginalMessage
>>From:ravicher@gmail.com[mailto:ravicher@gmail.com]OnBehalfOf
>>DanielB.Ravicher
>>Sent:Thursday,October16,20145:27AM
>>To:DavidPerlson;Joe.Re
>>Cc:CraigNard
>>Subject:Re:131307I/PEngine,Inc.v.AOLInc.:Requestfor
>>ConsenttoFileAmicusBrief
>>
>>Messrs.PearlsonandRe,
>>
>>ProfessorsNard,Risch,Schwartz,MossoffandIherebyenlargeourrequestforconsenttoinclude
ProfessorsTimothyR.HolbrookofEmoryLawandSeanB.SeymoreofVanderbiltLaw.
>>
>>Mr.Re,Pleaseletmeknowatyourconveniencewhetheryouenlargeyourconsenttoinclude
ProfessorsHolbrookandSeymore.
>>
>>Mr.Perlson,Pleaseletmeknowatyourconveniencewhetheryoumaintainyouoppositiontoour
requestforconsent.
>>
>>AsImentionedpreviously,ProfessorNardandImaycontinuetoenlargeourrequestforconsent
toincludeadditionalpersons.
>>
>>Warmregards,
>>
>>DanielB.Ravicher,Esq.
>>2000PonceDeLeonBlvd,Ste600
>>CoralGables,Florida33134
>>dan@ravicher.com786.505.1205
>>
>>OnWed,Oct1,2014at7:15PM,DavidPerlson<davidperlson@quinnemanuel.com>wrote:
>>>Mr.Ravicher,Googlecontinuestoopposeforthereasonsalreadystated.
>>>
>>>OriginalMessage
>>>From:ravicher@gmail.com[mailto:ravicher@gmail.com]OnBehalfOf
>>>DanielB.Ravicher
>>>Sent:Wednesday,October01,201412:08PM
>>>To:DavidPerlson;Joe.Re
>>>Cc:CraigNard
>>>Subject:Re:131307I/PEngine,Inc.v.AOLInc.:Requestfor
>>>ConsenttoFileAmicusBrief
>>>
>>>Messrs.PearlsonandRe,
>>>
>>>ProfessorNardandIherebyenlargeourrequestforconsenttoincludeProfessorsMichaelRisch
ofVillanovaSchoolofLaw,DavidSchwartzoftheIITChicagoKentCollegeofLawandAdamMossoff
ofGeorgeMasonSchoolofLaw.
>>>
>>>Mr.Re,Pleaseletmeknowatyourconveniencewhetheryouenlargeyourconsenttoinclude
ProfessorsRisch,SchwartzandMossoff.
>>>
Case: 13-1307 Document: 142 Page: 26 Filed: 11/03/2014
4
>>>Mr.Perlson,Pleaseletmeknowatyourconveniencewhetheryoumaintainyouoppositiontoour
requestforconsent.
>>>
>>>AsImentionedpreviously,ProfessorNardandImaycontinuetoenlargeourrequestforconsent
toincludeadditionalpersons.
>>>
>>>Warmregards,
>>>
>>>DanielB.Ravicher,Esq.
>>>2000PonceDeLeonBlvd,Ste600
>>>CoralGables,Florida33134
>>>dan@ravicher.com786.505.1205
>>>
>>>OnTue,Sep2,2014at2:35PM,DavidPerlson<davidperlson@quinnemanuel.com>wrote:
>>>>Mr.Ravicher,Googlecontinuestoopposeforthereasonsalreadystated.
>>>>
>>>>OriginalMessage
>>>>From:ravicher@gmail.com[mailto:ravicher@gmail.com]OnBehalfOf
>>>>DanielB.Ravicher
>>>>Sent:Tuesday,September02,20148:39AM
>>>>To:DavidPerlson;Joe.Re
>>>>Cc:CraigNard
>>>>Subject:Re:131307I/PEngine,Inc.v.AOLInc.:Requestfor
>>>>ConsenttoFileAmicusBrief
>>>>
>>>>Messrs.PerlsonandRe:
>>>>
>>>>Iherebyenlargemyrequestforconsenttoinclude,inadditiontomyself,ProfessorCraigNard
ofCaseWesternLawSchool.ProfessorNardisapreeminentpatentlawscholarandexpertwhoclerked
forbothJudgesNiesandRichontheFederalCircuit.MoreinformationaboutProfessorNardis
availablefrom:
>>>>http://law.case.edu/OurSchool/FacultyStaff/MeetOurFaculty/FacultyDetail.aspx?id=139.
>>>>
>>>>Mr.Re,Pleaseletmeknowatyourconveniencewhetheryouenlargeyourconsenttoinclude
ProfessorNard.
>>>>
>>>>Mr.Perlson,Pleaseletmeknowatyourconveniencewhetheryoumaintainyouoppositiontothe
requestforconsent.
>>>>
>>>>Also,soyouarenotsurprisedandsoyoucandiscussitwithyourclientsinconsiderationof
thisenlargedrequest,ProfessorNardandImayfurtherenlargeourrequesttoincludeadditional
patentlawscholarsandexperts.Ifandwhenwewishtofurtherenlargeourrequest,wewilldoso
immediatelysoastonotdelayyourconsideration.Fornow,yourresponsetoourjointrequestfor
consentwouldbegreatlyappreciated.
>>>>
>>>>Warmregards,
>>>>
>>>>DanielB.Ravicher,Esq.
>>>>2000PonceDeLeonBlvd,Ste600
>>>>CoralGables,Florida33134
>>>>dan@ravicher.com786.505.1205
>>>>
>>>>
>>>>OnFri,Aug29,2014at3:58PM,DanielB.Ravicher<dan@ravicher.com>wrote:
>>>>>AndyetonJuly31,2013,youdidnotopposemyrequestfor
>>>>>consenttosubmitanamicusbriefatthepanelmeritsstageofthisappeal.
>>>>>Sevenofthosearticlesyoucitewerepublishedwellbeforethat
>>>>>date,sowhatisdifferentnowthatIpublishedonemorearticlesubsequent?
>>>>>Andhowdoesanarticlepublishednearlyfourmonthsagoby
>>>>>someoneyouallegeisafrequenttraderprovideanybasisto
>>>>>assertyouhaveknowledgeoftheircurrentpositions,ifany.The
Case: 13-1307 Document: 142 Page: 27 Filed: 11/03/2014
5
>>>>>bottomlineisyoudonotdenyIameminentlycompetenttoprovide
>>>>>assistancetotheCourt,thatIamindeedunlikeanyotherpatent
>>>>>attorneyasfarasrepresentingthepublicinterestisconcerned,
>>>>>andthatyouhavenotasingleshredofevidenceofmyhavingany
>>>>>financialinterestinanypartyinthecase,butyetyoustill
>>>>>opposemyrequestforconsentbasedonsomearticlesIauthored
>>>>>months,andevenyears,ago.Thatisafrivolousposition,utterlybaselessonfactsorlaw.
>>>>>Iwillmakemymotionforleave,youcanwasteyourclient'smoney
>>>>>andthecourt'stimesubmittinganopposition,andthenwewill
>>>>>seewhatthecourtdecidesonthematter.
>>>>>
>>>>>OnFri,Aug29,2014at3:39PM,DavidPerlson
>>>>><davidperlson@quinnemanuel.com>wrote:
>>>>>>Mr.Ravicher,asIindicated,ourunderstandingisbasedon
>>>>>>publicallyavailableinformation.Atnumeroustimesduringthe
>>>>>>courseofthislawsuit,youhavepubliclydisclosedonthe
>>>>>>SeekingAlphawebsitethatyouholdeitheralongorashort
>>>>>>positioninVringostock.IwouldreferyoutoyourSeeking
>>>>>>AlphaarticlesofNovember7,2012,December5,2012,December
>>>>>>13,2012,January3,2013,January4,2013,January23,2013,June17,2013,andMay7,
2014.Wemaintainouropposition.
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>
>>>>>>From:ravicher@gmail.com[mailto:ravicher@gmail.com]OnBehalfOfDanielB.
>>>>>>Ravicher
>>>>>>Sent:Friday,August29,201410:53AM
>>>>>>
>>>>>>
>>>>>>To:DavidPerlson
>>>>>>Cc:Joe.Re
>>>>>>Subject:RE:131307I/PEngine,Inc.v.AOLInc.:Requestfor
>>>>>>ConsenttoFileAmicusBrief
>>>>>>
>>>>>>
>>>>>>
>>>>>>WhatfinancialinterestdoIhaveexactly?I'dliketoknowwhat
>>>>>>accountsofmineyouhaveillegallyaccessedinordertomake
>>>>>>suchassertions.Iwillassuredlynotifyallappropriatelaw
>>>>>>enforcementagencies,inadditiontoallapplicablebar
>>>>>>associations.Illegalaccesstopersonalfinancialinformationisacrimeandgroundsfor
disbarment.
>>>>>>
>>>>>>If,instead,youhaveabsolutelynoevidencewhatsoeverofmy
>>>>>>havinganyfinancialinterestinanypartyinthissuit,Itrust
>>>>>>youwillwithdrawyourfrivolousoppositiontomyappearanceas
>>>>>>anamici.Youcandosonoworyoucantrytoexplainyourpositiontothecourt.
>>>>>>I'dratheryounotwastetheCourt'stime,butthat'syourchoice.
>>>>>>
>>>>>>Ifyou'dliketodiscussonthephone,inthehopesthatwecan
>>>>>>resolvethisprivately,pleasejustnameyourtimeonTuesdayor
>>>>>>Wednesdaywhenwecandoso.
>>>>>>
>>>>>>OnAug29,20141:36PM,"DavidPerlson"
>>>>>><davidperlson@quinnemanuel.com>
>>>>>>wrote:
>>>>>>
>>>>>>Mr.Ravicher,wedonotbelievethatouroppositiontoyour
>>>>>>requestbasedonyourfinancialinterestisfrivolous,andwe
Case: 13-1307 Document: 142 Page: 28 Filed: 11/03/2014
6
>>>>>>maintainourposition.Ifyouwouldliketodiscussthematterfurtherbyphonewecando
so.
>>>>>>
>>>>>>OriginalMessage
>>>>>>From:ravicher@gmail.com[mailto:ravicher@gmail.com]OnBehalfOfDanielB.
>>>>>>Ravicher
>>>>>>Sent:Thursday,August28,20146:02PM
>>>>>>To:DavidPerlson
>>>>>>Cc:Joe.Re
>>>>>>Subject:Re:131307I/PEngine,Inc.v.AOLInc.:Requestfor
>>>>>>ConsenttoFileAmicusBrief
>>>>>>
>>>>>>David,
>>>>>>
>>>>>>Thankyouforyourreply.
>>>>>>
>>>>>>MybriefwillofferassistancetotheCourtbecauseIam
>>>>>>undeniablytheworld'sforemostpublicinterestpatentattorney.
>>>>>>Nootherpatentattorneyontheplanethasprovidedanywhere
>>>>>>closetoasmanyhoursofprobonoservicetotheindigent
>>>>>>public.Nootherpatentattorneyhasevertakenacasetothe
>>>>>>SupremeCourt,muchlesswon,onaprobonomatterfor
>>>>>>economicallydisadvantagedAmericanswithnootheraccessto
>>>>>>adequatecounsel.Nootherpatentattorneyhasfiledasmany
>>>>>>reexaminationsonbehalfofthepubliconaprobonobasis.I
>>>>>>haveappearedrepeatedlybeforetheFederalCircuit,andthe
>>>>>>SupremeCourt,onpatentlawandpolicyissues.Ihavealsobeen
>>>>>>calledtwiceasawitnessbyCongresstotestifyonpatent
>>>>>>reform.Iamalsoalawprofessorthathastaughtpatentlawandpolicyforseveralyears,
includingteachingU.S.patentlawandpolicytoseveralinternationalbodies,suchastheChinese
SIPOandtheUnitedNations.
>>>>>>Indeed,yourclientGoogleitselfhastwiceinvitedmetospeak
>>>>>>onitscampustoprovidecommentaryaboutpatentlawandpolicy.
>>>>>>Icouldcontinue,butIthinkImakethepointquiteclearlythat
>>>>>>yourargumentIamunqualifiedtoprovideassistancetothe
>>>>>>FederalCircuitonimportantissuesofpatentpolicyispurelyfrivolousand,frankly,
insulting.
>>>>>>
>>>>>>Mysometimesinvestinginvarioussecuritiesorderivatives
>>>>>>neitherprovidesnoreliminatesmyabilitytoofferassistancetotheCourt.
>>>>>>Therefore,thatissueisirrelevant.Iencourageyourclientsto
>>>>>>reconsidertheirpositiononmyrequest,becausefailingtogrant
>>>>>>consentwillforcemetofileamotionwiththecourt,burdening
>>>>>>itwithoutjustification.IwouldhopethatyouandIcould
>>>>>>resolvethissothatwedon'thavetowastethecourt'stimeand
>>>>>>attentionwithsuchafrivolousopposition.Ifyouwouldliketo
>>>>>>discussthiswithmefurther,Iamhappytospeakbyphoneatyourconvenience.
>>>>>>IfIdonotreceiveareplytothismessage,Iwillrepresentto
>>>>>>theCourtthatyourclientshaverefusedtograntconsentdespite
>>>>>>myundeniablequalificationsanddespitemyrequestthatyourclientsreconsidertheir
positiononmyrequest.
>>>>>>
>>>>>>Warmestregards,
>>>>>>Dan
>>>>>>
>>>>>>OnThu,Aug28,2014at4:44PM,DavidPerlson
>>>>>><davidperlson@quinnemanuel.com>wrote:
>>>>>>>Mr.Ravicher,Iapologizefornotrespondingearlier,Iwasout
>>>>>>>oftheofficelastweek.
>>>>>>>
>>>>>>>Defendantsdonotconsent.Itisourunderstandingbasedon
Case: 13-1307 Document: 142 Page: 29 Filed: 11/03/2014
7
>>>>>>>publicallyavailableinformationthatyouareanactivetrader
>>>>>>>andspeculatorofVringostockandthusnotaproperamicus.
>>>>>>>
>>>>>>>David
>>>>>>>
>>>>>>>
>>>>>>>
>>>>>>>OriginalMessage
>>>>>>>From:ravicher@gmail.com[mailto:ravicher@gmail.com]OnBehalf
>>>>>>>OfDanielB.Ravicher
>>>>>>>Sent:Thursday,August28,20147:13AM
>>>>>>>To:Joe.Re
>>>>>>>Cc:DavidPerlson
>>>>>>>Subject:Re:131307I/PEngine,Inc.v.AOLInc.:Requestfor
>>>>>>>ConsenttoFileAmicusBrief
>>>>>>>
>>>>>>>Mr.Perlson:
>>>>>>>
>>>>>>>Tofollowuponmymessagelastweek,whileIhavereceived
>>>>>>>consentfromI/PEngine,Ihavenotreceivedaresponsefromyouregardingmyrequest.
>>>>>>>Canyoupleaseconfirmthatyouhavereceivedmyrequest?
>>>>>>>Thankyou.
>>>>>>>
>>>>>>>Warmregards,
>>>>>>>Dan
>>>>>>>
>>>>>>>OnWed,Aug20,2014at9:27PM,Joe.Re<Joe.Re@knobbe.com>wrote:
>>>>>>>>IPEngineherebyconsentstoanamicusbrief.Thankyou.
>>>>>>>>
>>>>>>>>JosephRe.
>>>>>>>>
>>>>>>>>>OnAug20,2014,at6:52AM,"DanielB.Ravicher"
>>>>>>>>><dan@ravicher.com>
>>>>>>>>>wrote:
>>>>>>>>>
>>>>>>>>>DearMessrs.PerlsonandRe:
>>>>>>>>>
>>>>>>>>>PursuanttoFed.R.App.P.29,Iwritetorequestconsentto
>>>>>>>>>myfilinganamicusbriefwiththeFederalCircuitin131307
>>>>>>>>>I/PEngine,Inc.v.AOLInc.onbehalfof
>>>>>>>>>Plaintiff/CrossAppellant,I/PEngine,Inc.uponanypetition
>>>>>>>>>forrehearingorrehearingenbancthatmaybefiled.
>>>>>>>>>
>>>>>>>>>Warmregards,
>>>>>>>>>
>>>>>>>>>DanielB.Ravicher,Esq.
>>>>>>>>>RavicherLawFirm
>>>>>>>>>2000PonceDeLeonBlvd,Ste600CoralGables,Florida33134
>>>>>>>>>(786)5051205|dan@ravicher.com