Case 2:13-cv-00522-JRG Document 174 Filed 11/03/14 Page 1 of 3 PageID #: 3701
`
`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`INNOVATIVE DISPLAY
`TECHNOLOGIES LLC,
`
`
`Plaintiff,
`
`
`v.
`
`ACER INC. AND ACER AMERICA
`CORP.,
`
`
`Defendants.
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`C.A. No. 2:13-cv-522
`(Consolidated – Lead Case)
`
`JURY TRIAL DEMANDED
`
`
`
`
`PLAINTIFF’S NOTICE OF COMPLIANCE REGARDING
`SUBMISSION OF RESPONSE TO LETTER BRIEF
`
`
`
`
`
`
`
`
`
`
`
`In compliance with the Court’s Standing Order regarding Submission of Letter Briefs and
`
`the Docket Control Order of January 23, 2014 (Docket No. 37) (“Court’s Order”), Plaintiff
`
`Innovative Display Technologies LLC hereby files this Notice of its response letter to the Court
`
`regarding the letter brief submitted on October 20, 2014 by Defendants Dell Inc. and Hewlett-
`
`Packard Company regarding Request for Leave to File a Motion for Summary Judgment of
`
`Invalidity Pursuant to 35 U.S.C. § 112 (Docket No. 153-1). A copy of Plaintiff’s response letter
`
`is attached as Exhibit 1.
`
`
`
`
`PLAINTIFF’S NOTICE OF COMPLIANCE REGARDING SUBMISSION OF RESPONSE TO LETTER BRIEF
`
`
`PAGE 1
`
`
`
`TOYOTA EXHIBIT 1010
`
`Page 1 of 9
`
`

`

`Case 2:13-cv-00522-JRG Document 174 Filed 11/03/14 Page 2 of 3 PageID #: 3702
`
`
`
`Dated: November 3, 2014
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`/s/ Jeffrey R. Bragalone
`Jeffrey R. Bragalone (lead attorney)
`Texas Bar No. 02855775
`Patrick J. Conroy
`Texas Bar No. 24012448
`Justin B. Kimble
`Texas Bar No. 24036909
`T. William Kennedy, Jr.
`Texas Bar No. 24055771
`Daniel F. Olejko
`Pennsylvania Bar No. 205512
`Bragalone Conroy PC
`2200 Ross Avenue
`Suite 4500W
`Dallas, TX 75201
`Tel: (214) 785-6670
`Fax: (214) 785-6680
`jbragalone@bcpc-law.com
`pconroy@bcpc-law.com
`jkimble@bcpc-law.com
`bkennedy@bcpc-law.com
`dolejko@bcpc-law.com
`
`
`T. John Ward Jr.
`Texas Bar No. 00794818
`Claire Abernathy Henry
`Texas Bar No. 24053063
`Ward & Smith Law Firm
`1127 Judson Road, Suite 220
`Longview, TX 75601
`Tel: (903) 757-6400
`Fax: (903) 757.2323
`jw@wsfirm.com
`claire@wsfirm.com
`
`
`Attorneys for Plaintiff
`INNOVATIVE DISPLAY
`TECHNOLOGIES LLC
`
`
`
`
`
`
`
`PLAINTIFF’S NOTICE OF COMPLIANCE REGARDING SUBMISSION OF RESPONSE TO LETTER BRIEF
`
`
`PAGE 2
`
`
`
`Page 2 of 9
`
`

`

`Case 2:13-cv-00522-JRG Document 174 Filed 11/03/14 Page 3 of 3 PageID #: 3703
`
`
`
`CERTIFICATE OF SERVICE
`
`
`
`The undersigned hereby certifies that all counsel of record who are deemed to have
`consented to electronic service are being served this 3rd day of November, 2014, with a copy of
`this document via electronic mail pursuant to Local Rule CV-5(d).
`
`
`/s/ T. William Kennedy
`
`
`
`
`
`
`
`
`
`PLAINTIFF’S NOTICE OF COMPLIANCE REGARDING SUBMISSION OF RESPONSE TO LETTER BRIEF
`
`
`PAGE 3
`
`
`
`Page 3 of 9
`
`

`

`Case 2:13-cv-00522-JRG Document 174-1 Filed 11/03/14 Page 1 of 6 PageID #: 3704
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`EXHIBIT 1
`
`
`
`
`Page 4 of 9
`
`

`

`Case 2:13-cv-00522-JRG Document 174-1 Filed 11/03/14 Page 2 of 6 PageID #: 3705
`
`
`
`
`
`
`
`Writer’s Direct Dial: 214-785-6671
`Writer’s Email: jbragalone@bcpc-law.com
`
`
`
`
`
`
`
`
`
`
`
`November 3, 2014
`
`
`VIA ELECTRONIC COURT FILING (ECF)
`
`The Honorable Rodney Gilstrap
`District Judge for the Eastern District of Texas – Marshall Division
`Sam B. Hall Jr. Federal Building and United States Courthouse
`101 East Houston Street
`Marshall, Texas 75670
`
`
`Re:
`
`Response Request for Leave to File Motion for Summary Judgment of Invalidity
`Pursuant to 35 U.S.C. § 112 in Innovative Display Technologies LLC v. Acer Inc., et
`al; No. 2:13-cv-00522-JRG (consolidated lead case)
`
`Dear Judge Gilstrap:
`
`Plaintiff Innovative Display Technologies LLC (“IDT”) respectfully submits that the Court should
`deny the October 20, 2014, request (the “Letter Brief”) from Defendants Dell Inc. (“Dell”) and
`Hewlett-Packard Company (“HP”) (collectively, “Defendants”) for permission to file a motion for
`summary judgment of invalidity pursuant to 35 U.S.C. § 112. Generally, Defendants’ brief
`addresses two particular terms in specific claims that it believes are invalid for lack of written
`description and then addresses indefiniteness arguments that it has made four times already, and
`that have been rejected by Judge Payne. Notably, Dell submitted to Magistrate Judge Payne, yet
`it is attempting to piggy-back on HP’s objections to his ruling, and Dell is now filing this letter brief
`in contradiction to Judge Payne’s clear ruling and in contradiction to the Court’s standing order.1
`This response discusses the indefiniteness arguments first and then addresses the written
`description issues.
`
`The Alleged Indefinite Terms
`Defendants again attempt to revive their dead indefiniteness arguments. This will mark at least
`the fifth time that the Court has heard these arguments – (response to claim construction brief,
`Markman hearing, Objections, and Reply to Objections being the preceding four). As before, the
`Letter Brief contends that three groups of terms are indefinite: (1) “pass through a liquid crystal
`display with low loss”; (2) the “well defined optical elements or deformities” terms; and (3) the
`“to [suit/fit] a particular application” terms. Considering the same arguments that Defendants
`make in the Letter Brief, Magistrate Judge Payne found that none of those terms are indefinite.2
`
`
`1 See Standing Order Regarding Submission of Letter Briefs (“The letter brief should be addressed to either United
`States District Judge Rodney Gilstrap or United States Magistrate Judge Roy S. Payne, as appropriate.”).
`2 Dkt. No. 101 at 47 (“well defined”), 54 (“low loss”), and 56 (“to [suit/fit] a particular application”)
`
`
`
`Page 5 of 9
`
`

`

`Case 2:13-cv-00522-JRG Document 174-1 Filed 11/03/14 Page 3 of 6 PageID #: 3706
`
`The Honorable Rodney Gilstrap
`November 3, 2014
`Page 2
`
`
`
`Despite the clear ruling of Magistrate Judge Payne, the Defendants now inexplicably ask the Court
`for leave to file a summary judgment motion that those terms are indefinite.
`
`Defendants make no new indefiniteness arguments in their Letter Brief other than to cite to
`testimony of the inventor, Jeffery Parker. That Federal Circuit has held that such inventor
`testimony is inappropriate for the indefiniteness analysis. See, e.g., Solomon v. Kimberly-Clark
`Corp., 216 F.3d 1372, 1379 (Fed. Cir. 2000) (“It is particularly inappropriate to consider inventor
`testimony obtained in the context of litigation in assessing validity under section 112 , paragraph
`2, in view of the absence of probative value of such testimony. In Markman, we addressed the
`closely related issue of litigation-derived inventor testimony in the context of claim construction,
`and concluded that such testimony is entitled to little, if any, probative value.”).
`
`Furthermore, Defendants’ attempt to file summary judgment on indefiniteness contradicts this
`Court’s Docket Control Order. The order reads in relevant part, “In lieu of early motions for
`summary judgment, the parties are directed to include any arguments related to the issue of
`indefiniteness in their Markman briefing...” Dkt. No. 37 at 4. Thus, all of Defendants’ arguments
`on indefiniteness should have been included in their Markman briefing, and any new argument
`here violates the Docket Control Order. Moreover, citing to Mr. Parker’s deposition from only a
`few days ago violates the Court’s deadline to provide P.R. 4-2 disclosures, which was April 14,
`2014. On that date, the Defendants were to provide IDT with “any testimony of percipient and
`expert witnesses they contend support their respective claim constructions.” When IDT
`attempted to supplement its Markman briefing on June 16 with an expert declaration on
`definiteness submitted concurrently with its opening brief, Defendants moved to strike that
`testimony as untimely, and the Court granted the motion. 3 If that testimony were untimely,
`certainly Defendants’ purported expert testimony submitted five months later is untimely.
`Defendants could have deposed Mr. Parker before the deadline and included his testimony in
`their Markman briefing. Defendants did not take that course of action, and they should not be
`allowed to shoe-horn Mr. Parker’s testimony into an untimely Letter Brief for summary judgment
`on indefiniteness. The remainder of Defendants’ arguments for indefiniteness has been refuted
`by IDT multiple times in its claim construction briefing and in its response/sur-reply to Defendants’
`objections to the claim construction ruling. IDT respectfully refers the Court to its briefing therein.
`
`The Alleged Lack of Written Description - “Desired Light Output Color”
`Defendants argue that the term “at least one secondary flat, angled, faceted or curved reflective
`or refractive surface to facilitate better mixing of light rays within the cavity or recess to produce
`a desired light output color or uniformity” from claim 15 of the U.S. Patent No. 7,384,177 lacks
`adequate written description to support the “desired light output color” portion of the limitation.
`But the specification contains many instances in which the inventor describes mixing of light rays
`to produce a desired light output color, including these examples:
`
`
`3 Dkt. No. 85.
`
`Page 6 of 9
`
`

`

`Case 2:13-cv-00522-JRG Document 174-1 Filed 11/03/14 Page 4 of 6 PageID #: 3707
`
`The Honorable Rodney Gilstrap
`November 3, 2014
`Page 3
`
`
`
`
`
`Additionally, the light sources 3 may be a multiple colored LED, or a combination
`of multiple colored radiation sources in order to provide a desired colored or white
`light output distribution. For example, a plurality of colored lights such as LEDs of
`different colors (red, blue, green) or a single LED with multiple colored chips may
`be employed to create white light or any other colored light output distribution by
`varying the intensities of each individual colored light. ’177 patent at col. 4, ll. 31-
`38.
`
`In this particular embodiment, each of the light sources 3 desirably employs three
`colored LEDs (red, blue, green) in each transition mixing area 43 so that the light
`from the three LEDs can be mixed to produce a desired light output color that will
`be emitted from the light output area 42. Alternatively, each light source may be a
`single LED having multiple colored chips bonded to the lead film. Also, two colored
`LEDs or a single LED having two colored chips may be used for a particular
`application. By varying the intensities of the individual respective LEDs, virtually
`any colored light output or white light distribution can be achieved. ’177 patent at
`col. 7, ll. 20-31.
`
`In accordance with still another aspect of the invention, the light source may
`include multiple colored light sources for supplying light to one or more light output
`areas, and for providing a colored or white light output distribution. ’177 patent at
`col. 1, ll. 59-62.
`
`
`One of ordinary skill in the art would have read that clear disclosure of mixing different colors of
`light in the written description of the ’177 patent and understood that the inventor possessed an
`invention in which the secondary reflectors as described below could accomplish that mixing.
`
`
`Additionally, one or more secondary reflective or refractive surfaces 38 may be
`provided on the panel member 33 and/or tray 35 to reflect a portion of the light
`around one or more corners or curves in a non-rectangular shaped panel member
`33. These secondary reflective/refractive surfaces 38 may be flat, angled, faceted
`or curved, and may be used to extract a portion of the light away from the panel
`member in a predetermined pattern. FIG. 6 also shows multiple light output areas
`34 on the panel member that emit light from one or more light sources 3. ’177
`patent at col. 7, ll. 3-12.
`
`
`
`“Compliance with § 112 requires sufficient information in the specification to show that the
`inventor possessed the invention at the time of that original disclosure.” Pandrol USA, LP v. Airboss
`Ry. Products, Inc., 424 F.3d 1161, 1165 (Fed. Cir. 2005). “The written description requirement does
`not require the applicant to describe exactly the subject matter claimed, instead the description
`
`Page 7 of 9
`
`

`

`Case 2:13-cv-00522-JRG Document 174-1 Filed 11/03/14 Page 5 of 6 PageID #: 3708
`
`The Honorable Rodney Gilstrap
`November 3, 2014
`Page 4
`
`
`
`must clearly allow persons of ordinary skill in the art to recognize that he or she invented what is
`claimed.” Union Oil Co. of California v. Atl. Richfield Co., 208 F.3d 989, 997 (Fed. Cir. 2000)
`(citations and brackets omitted) (emphasis added). In this case, one of ordinary skill in the art
`would have read the clear disclosure of the color mixing described in the ’177 patent along with
`the reflective properties of the secondary surfaces disclosed in the ’177 patent and understood
`that the inventor was in possession of secondary surfaces that could achieve a “desired light
`output color” as recited in claim 15.
`
`The Alleged Lack of Written Description - Width and Height Component
`Defendants argue that the term “plurality of light sources configured to generate light having an
`output distribution defined by a greater width component than height component” from claim 1
`of the ’660 patent and the term “each light source configured to generate light having an output
`distribution defined by a greater width component than height component” from claim 33 of the
`’660 patent are invalid for lack of written description. Letter Brief at 2-3. Defendants’ arguments
`are premised on their statement that the terms “‘width component,” and ‘height component,’ do
`not appear anywhere in the ’660 Patent outside of the claims.” Letter Brief at 3. Nevertheless, one
`of ordinary skill in the art would have understood what “width component” and “height
`component” mean in the context of the ’660 patent. As the Federal Circuit has stated, “The
`descriptive text needed to meet these requirements varies with the nature and scope of the
`invention at issue, and with the scientific and technologic knowledge already in existence.” Capon
`v. Eshhar, 418 F.3d 1349, 1357 (Fed. Cir. 2005). Here one of ordinary skill in the art does not need
`an explicit definition of width and height. Those are concepts known to lay people. If any doubt
`needed to be resolved, the specification discusses the length and width of panels, which would
`allow one of ordinary skill in the art to determine the width and height dimensions by inspecting
`the corresponding Figures of the ’660 patent. For example, one of ordinary skill in the art could
`discern the dimensions by comparing Figure 1 to this statement: “The light that is transmitted by
`the light transition area 4 to the transparent light emitting panel 2 may be emitted along the entire
`length of the panel or from one or more light output areas along the length of the panel as desired
`to produce a desired light output distribution to fit a particular application.” ’660 patent at col. 2,
`ln. 66 through col. 3, ln. 4 (emphasis added).
`
`
`Length
`
`
`
`Height
`
`Width
`
`
`
`Page 8 of 9
`
`

`

`Case 2:13-cv-00522-JRG Document 174-1 Filed 11/03/14 Page 6 of 6 PageID #: 3709
`
`The Honorable Rodney Gilstrap
`November 3, 2014
`Page 5
`
`
`
`Fig. 1 (with dimension annotations added). By comparing Figure 1 to that statement, one of
`ordinary skill in the art would have known that the length corresponded to the annotation shown
`in Figure 1 above. With that information in hand, the rest of the dimensions fall into place. And
`one of ordinary skill in the art could confirm that information by noting that light source 3 in Figure
`1 has a greater width than height with those dimensions applied.
`
`One of ordinary skill in the art could further confirm that understanding of the width and height
`dimensions by comparing Fig. 4 to this statement from the specification: “Additionally, the
`deformities may vary in shape and/or size along the length and/or width of the panel members.
`Also, a random placement pattern of the deformities may be utilized throughout the length and/or
`width of the panel members.” ’660 patent at col. 5, ll. 43-46.
`
`
`Lastly, one of ordinary skill in the art could further confirm the width and height dimensions by
`inspecting the light source in Figure 15, which shows a single light source with a greater width
`than height and by inspecting Figure 7, which shows a plurality of light sources configured to
`generate light having an output distribution defined by a greater width component than height
`component:
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
`
`
`
`Jeffrey R. Bragalone
`
`
`
`
`cc:
`
`
`
`
`Counsel of Record
`
`Page 9 of 9
`
`