Case 1:16-cv-00116-RGA Document 178 Filed 08/31/17 Page 1 of 2 PageID #: 3279
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`Case 1:16-cv-00116-RGA Document 178 Filed 08/31/17 Page 1 of 2 PageID #: 3279
`
`PHILLIPS, GOLDNIAN, MCLAUGHLIN & HALL, P.A.
`
`JOHN C. PHILLIPS, IR.
`ROBERT S. GOLDMAN
`LISA C. MCLAUGIILIN
`JAMES P, HALL
`DAVID A. BILSON
`MEGAN c. HANEY
`
`ATTORNEYS AT LAW
`PENNSYLVANIA AVE. AND BROOM ST.
`1200 N. BROOM STREET
`WILMINGTON, DE 19806
`
`(302) 655-4200 (P)
`(302) 6554210 (F)
`
`August 24, 2017
`
`VIA CM/ECF & HAND DELIVERY
`The Honorable Richard G. Andrews
`
`United States District Court for the District of Delaware
`
`844 N. King Street
`_
`_
`Wllmlngton, Delaware 19801
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`REDACTED — PUBLIC VERSION
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`Re:
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`Sound View Innovations, LLC v. Facebook, Inc, CA. No. 16-116 (RGA)
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`Dear Judge Andrews,
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`Plaintiff Sound View Innovations, LLC (“Sound View”) submits this letter in response to
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`the letter submitted yesterday by Facebook. (D1. 167.)
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`case in its preliminary infringement contentions served on August 26, 2016.
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`(D1. 46.) Those
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`original contentions show
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`(fa-"r. 1d"“1ogilt_for'rr" a-‘irirn-"-‘i‘ttps:x'."ll'l- hfereh 95 .ccm.’1:‘igi.: piip?
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`(D1. 167, Ex. C. at 20.)
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`In early 2017, the parties agreed to supplement their interrogatory
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`responses; Sound View would identify additional
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`source code support
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`to demonstrate
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`Facebook’s infringement based on its review of the source code computer, and Facebook would
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`in response to
`provide substantive non-infringement contentions. On February 2, 2017,
`Facebook’s lnterrogatcry 7,1 Sound View— related to
`Facebook’s infringement of the ’181 patent.
`(EX.
`1 at 16-18.)
`In its non—infringement
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`On June 16, 2017, F acebook’s designated technical 30(b)(6) witness for the first time
`asserted—, appearing to put forward a new non—infringement
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`1 That interrogatory requests that Sound View: “Provide element—by—element claim charts setting
`forth the complete basis for Your contention that Facebook has Infringed, whether directly or
`indirectly,
`literally or under the doctrine of equivalents, the Asserted Claims,
`including an
`identification of the alleged direct Infringer(s) of each Asserted Claim, if any.”
`
`

`

`Case 1:16-cv-00116-RGA Document 178 Filed 08/31/17 Page 2 of 2 PageID #: 3280
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`Case 1:16-cv-00116—RGA Document 178 Filed 08/31/17 Page 2 of 2 PageID #: 3280
`
`The Honorable Richard G. Andrews
`August 24, 2017
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`Page 2
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`argument that Facebook had not identified in its discovery responses.2 Despite supplementing its
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`non—infringement contentions on June 5, 2017, which continued
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`3
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`as its witness appeared to contend.
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`(See Ex. 2 at 19—26.)
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`r, Facebook did not indicate it intended to contend
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`in its
`non-infringement contentions, Sound View responded to that testimony by explaining
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`and
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`Facebook nonetheless literally infringes. Minutes before the close of fact discovery, Facebook
`supplemented its non-infringement contentions to assert—,
`apparently adopting the witness’s testimony.
`(See EX. 3 at 44; see also D.I. 158.)
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`Although Facebook did not include the assertion
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`Facebook now seeks to pursue its belated non-infringement argument and asks the Court
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`to prevent Sound View from explaining why the same functionality accused all along does, in
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`fact, infringe. Facebook anchors its request in claims of prejudice. But there is no prejudice to
`Facebook. Facebook’s own witness raised the argument— for the first time at
`deposition, and Facebook has unfettered access to both its witnesses and source code.
`If any
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`party has been prejudiced by the chronology of events on this issue, it is Sound View. Facebook
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`did not disclose its non-infringement theory in advance of its technical 30(b)(6) deposition, and
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`Sound View was forced to respond on the fly. Sound View does not have further access to
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`Facebook’s witnesses, and did not have a written disclosure of Facebook’s position until the last
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`day of discovery. Despite this, Sound View does not seek to strike Facebook’s non—infringement
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`theory and merely seeks to respond to Facebook’s belated assertion.
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`Sound View thus requests that the Court deny Facebook’s request to strike portion of
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`Sound View’s First Amended Infringement Contentions.
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`Respectfully submitted,
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`/S/John C. Phillips, Jr.
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`John C. Phillips, Jr. (No. 110)
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`Cc: All counsel of record (via CM/ECF & email)
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`2 Facebook now attempts to create a false dichotomy between. and CGI claiming that
`“Sound View knew of should have known that Facebook had no ‘10 in CGI’ and that its lo in
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`.D.I. 167 at 3.)
`Thus, Facebook’s argument that
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`“Soqu View knew or should have known that a large portion of the source code-
`—D.I. 167 at 2), has no bearing at all on whether. can
`satisfy CGI.
`
`