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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`SANTA ANA DIVISION
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`Case No. 8:19-cv-01150-DOC-KES
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`(CONSOLIDATED)
`
`DECLARATION OF JAMES J.
`FOSTER IN SUPPORT OF
`PLAINTIFF’S
`OPPOSITION TO NETSUITE’S
`MOTION TO DISMISS
`
`Case No. 8:19-cv-01151-DOC-KES
`
`
`
`Aaron S. Jacobs (Cal. Bar No. 214953)
`ajacobs@princelobel.com
`James J. Foster
`jfoster@princelobel.com
`PRINCE LOBEL TYE LLP
`One International Place, Suite 3700
`Boston, MA 02110
`Tel: (617) 456-8000
`
`Matthew D. Vella (Cal. Bar No. 314548)
`mvella@princelobel.com
`PRINCE LOBEL TYE LLP
`357 S. Coast Highway, Suite 200
`Laguna Beach, CA 92651
`Tel: (949) 232-6375
`
`Attorneys for Plaintiff
`
`
`Plaintiff,
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`Plaintiff,
`
`UNILOC 2017 LLC,
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`
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`v.
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`INFOR, INC.,
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`Defendant.
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`UNILOC 2017 LLC,
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`v.
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`NETSUITE, INC.,
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`Defendant.
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`1.
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`I am counsel for Plaintiff, Uniloc 2017, in this action. I am submitting
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`this declaration under penalty of perjury in support of Uniloc’s Opposition to
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`NetSuite’s Motion to Dismiss.
`
`The Claim Construction Dispute in the Texas Eastern District
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`2.
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`On August 16, 2017, in consolidated actions pending against certain
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`defendants in the Eastern District of Texas, including the two patents involved here,
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`DECLARATION OF JAMES J. FOSTER
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`1
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`Case No. 8:19-cv-01150-DOC-KES
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`Case 8:19-cv-01150-DOC-KES Document 62-1 Filed 11/06/20 Page 2 of 3 Page ID #:941
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`the court entered an interlocutory claim construction order. A copy of that order is
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`attached as Exhibit 1.
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`3.
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`I reviewed the claim construction order at the time and found several
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`material errors in it, most notably that several constructions gave terms meanings
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`different from the meanings that would have been given to them by a person of skill
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`in the art, including “application program.” To give the Eastern District of Texas
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`court an opportunity to correct those errors before trial, I drafted and filed with that
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`court on September 27, 2017, a Motion for Reconsideration. A copy of relevant
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`pages from that Motion are attached as Exhibit 2.
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`4.
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`In support of that Motion, I submitted an expert declaration of Dr.
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`Michael Shamos, in which he explained the errors in the constructions. A copy of
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`relevant pages from that declaration are attached as Exhibit 3.
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`5.
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`The motion was denied as moot because of an intervening decision on
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`patent eligibility, which decision was appealed and reversed, in part. After the action
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`was remanded, on November 5, 2019, I refiled in the Texas Eastern District Court a
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`Motion for Reconsideration of the interlocutory claim construction order. A copy of
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`relevant pages of that refiled motion is attached as Exhibit 4. I submitted with that
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`Motion another copy of the Shamos declaration (Exhibit 3).
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`6.
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`The Eastern District of Texas court denied the refiled Motion for
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`Reconsideration. A copy of that denial is attached as Exhibit 5.
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`7.
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`I am attaching as Exhibit 6 a portion of another Shamos Declaration,
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`filed in another action on January 23, 2020, further describing the error in the
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`construction the Texas court had adopted.
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`8.
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`The parties to the Eastern District of Texas action later reached a
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`settlement, and agreed to dismiss the action. As a result, the interlocutory claim
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`construction order was never finalized, nor was a final judgment entered based upon
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`any constructions from that order.
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`DECLARATION OF JAMES J. FOSTER
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`2
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`Case No. 8:19-cv-01150-DOC-KES
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`
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`Case 8:19-cv-01150-DOC-KES Document 62-1 Filed 11/06/20 Page 3 of 3 Page ID #:942
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`
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`
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`Dated: November 6, 2020
`
` /s/ James J. Foster
`James J. Foster
`
`
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`DECLARATION OF JAMES J. FOSTER
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`3
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`Case No. 8:19-cv-01150-DOC-KES
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