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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ORACLE CORPORATION and
`ORACLE U.S.A INC
`
`Plaintiffs/Counterclaim Defendants
`
`EPICREALM LICENSING LP
`
`Defendant/Counterclaim Plaintiff
`
`C.A No 06-4l4-SLR
`
`JURY TRIAL DEMANDED
`
`PUBLIC VERSION
`
`EPICREALMS REPLY MEMORANDUM IN SUPPORT OF ITS MOTION
`FOR PARTIAL SUMMARY JUDGMENT OF LITERAL INFRINGEMENT
`
`Horwitz 2246
`Richard
`Moore 3983
`David
`POTTER ANDERSON
`Hercules Plaza 6th Floor
`Market Street
`1313
`Wilmington DE 19899
`Tel 302 984-6000
`rhorwitz@pfltteranderson.com
`
`CORROON LLP
`
`dmoore@pofteranderson.com
`
`Attorneys for Defendant/Counterclaim
`PlaintjffepicRealm Licensing LP
`
`OF COUNSEL
`
`Harry
`
`Roper
`
`George
`Aaron
`
`Patrick
`David
`
`Paul
`
`Bosy
`Barlow
`
`Patras
`
`Bennett
`
`Margolis
`Bradford
`
`Benjamin
`
`Johnson
`Emily
`BLOCK
`JENNER
`Wabash Avenue
`330
`Chicago IL 60611-7603
`Tel 312 923-8305
`
`Dated September
`2008
`Public Version Dated September 12 2008
`881231 /31393/ Oracic
`
`Petitioner IBM – Ex. 1026, p. 1
`
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`TABLE OF CONTENTS
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`SUMMARY OF ARGUMENT
`
`II ARGUMENT
`
`.1
`
`.3
`
`The Patent Legal Principles Are Well Settled
`
`Oracles New Requirements For Intercepting Cannot Change The Fact That The
`Accused Oracle Products Perform Intercepting Under Each Partys Proposed
`Construction
`
`Oracles New Requirement For Dispatcher Cannot Change The Fact That The Accused
`Oracle Products Have
`Dispatcher Under Each Partys Proposed Construction
`
`Oracles Ever Changing Requirements For Releasing Cannot Change The Fact That
`The Accused Oracle Products Perform Releasing Under Each Partys Proposed
`Construction
`
`Delegation
`
`TCP Releasing
`
`TCP Acknowledgement
`Texas Jury Already Rejected Oracles Argument That
`Cannot Be Releasing Under Oracles Proposed Construction
`
`Oracle Does Not Dispute That The Web Server Is Released In All Of The Accused
`Oracle Products
`
`Oracles Remaining Arguments To Stave Off Summary Judgment Are Frivolous
`
`Oracle Already Admitted Reviewing All Of The Source Code Is Not Necessary To
`Establish Infringement
`
`Oracles Claim That EpicRealm Has Made
`Courts Granting EpicRealms Motion
`
`New Argument Does Not Prevent The
`
`Oracles Multiple Infringements Do Not Provide It With
`
`Defense
`
`III CONCLUSION
`
`11
`
`11
`
`12
`
`14
`
`15
`
`15
`
`16
`
`17
`
`19
`
`20
`
`Petitioner IBM – Ex. 1026, p. 2
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`TABLE OF AUTHORITIES
`
`Cases
`
`ABB Automation Inc
`254
`Supp 2d 479
`
`Schiumberger Res Mgmt Sens Inc
`Del 2002
`
`Roclewood Retaining Walls Inc
`Anchor Wall Sys Inc
`340 F.3d 1298 Fed Cit 2003
`
`Liberty Lobby Inc
`Anderson
`477 U.S 242 1986
`
`Northlalce Mktg
`Glaverbel Societe Anonyme
`45 F.3d 1550 Fed Cir 1995
`Unilever US Inc
`Kao Corp
`441 F.3d 963 Fed Cit 2006
`Martin Merrell Dow Pharms Inc
`851 F.2d703 3dCir 1988
`
`MEHL/Biophile Intl Corp Milgraum
`192 F.3d 1362 Fed Cit 1999
`
`Netmotion Wireless Inc
`Padcom Inc
`C.A No 03-983-SLR 2006 WL 416865
`Rainey Am Forest and Paper Ass
`Supp 2d 82 D.D.C 1998
`26
`
`Inc
`
`Rockwell Intl Corp
`Scherer
`975 F.2d 356 7th Cit 1992
`
`Supply Inc
`
`Del Feb 22 2006
`
`11
`
`18
`
`13
`
`Petitioner IBM – Ex. 1026, p. 3
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`EpicRealm files this reply in support of its motion for partial summaryjudgment of literal
`
`infringement D.I 223 In support of this reply brief epicRealm cites to exhibits submitted in
`
`the appendices accompanying its opening briefD.I 225 D.I 226 and Di 227 and to
`
`additional exhibits attached hereto as Exh 3-40 None of Oracles arguments in its
`
`memorandum in opposition D.I 269 Oracle Br provides any defense to the entry of partial
`
`summaryjudgment that on the facts that are not in genuine dispute Oracle literally infringes
`
`Claim II of epicRealms 554 Patent with respect
`
`to all
`
`three Accused Oracle Products under
`
`either partys proposed claim constructions EpicRealms motion should therefore be granted
`
`SUMMARY OF ARGUMENT
`
`Oracle offers three reasons why epickealms motion should not be granted and
`
`none has any merit Specifically Oracle argues that the Accused Oracle Products do not meet
`
`the intercepting limitation the dispatcher limitation or the releasing limitation Oracle
`
`makes no other noninfringement arguments with respect to any other claim limitations and with
`
`respect
`
`to those limitations Oracle has no defense to epicRealms motion EpicRealms motion
`
`should be granted for the following reasons
`
`The intercepting limitation On the issue of how the Accused Oracle
`
`Products satisfy the intercepting limitation there are no material facts in dispute Nor is there
`
`any dispute that the Accused Oracle Products meet both partie proposed constructions of the
`
`intercepting limitation Thus it does not matter which of the two proffered constructions the
`
`Court enterssummary judgment should be granted either way Oracles defense is not fact
`
`based but rather is based on
`
`legally erroneous attempt
`
`to read new requirements into the
`
`intercepting limitation that are not recited in either partys proposed claim constructions
`
`Plainly this attempt
`
`to evade summary judgment should be denied first because the parties
`
`proposed claim constructions have long been fixed and it
`
`is too late in the day to proffer new
`
`Petitioner IBM – Ex. 1026, p. 4
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`constructions
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`and second because it
`
`is legally erroneous to read limitations into patent claims in
`
`any event When stripped of the legally erroneous attempt to evade summary judgment
`
`it
`
`is
`
`clear that there are no genuine issues of material fact with respect to the intercepting limitation
`
`This issue is therefore clearly one tailor made for summary judgment
`
`The dispatcher
`
`limitation Again as in the case with the intercepting
`
`limitation there is no dispute that the Accused Oracle Products meet the dispatcher
`
`limitation
`
`under both epicRealms and Oracles proposed claim constructions Oracle does not raise any
`
`issue of fact but rather offers
`
`defense based on reading new limitations into the term
`
`dispatcher that are not recited in either partys claim construction As in the case with
`
`intercepting this defense is legally erroneous and is entitled to no consideration
`
`The releasing limitation As is the case with the intercepting and
`
`dispatcher limitations there is no genuine dispute that the Accused Oracle Products meet
`
`epicRealms and Oracles proposed constructions of the term releasing Oracle offers two
`
`attempts to escape
`
`finding of infringement on summaryjudgment both legally erroneous As
`
`shown in epicRealms opening brief epicRealm established two independent grounds for
`
`infringement of the releasing limitation The first
`
`is the delegation infringement proof and
`
`the second is the TCP releasing infringement proof With respect to the delegation
`
`infringement proof Oracle offers the purported defense that epicRealms delegation
`
`inflingement proof is the same as epicRealms implicit releasing infringement theory in the
`
`Texas action The simple answer to this contention is that epicRealm delegation
`
`infringement proof here is far different from the implicit releasing infringement theory asserted
`
`against different products and against different defendants in the Texas action At the end of the
`
`day Oracle gains nothing from its reliance on the decision of the Texas Court the jury there
`
`Petitioner IBM – Ex. 1026, p. 5
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`returned
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`verdict of validity and infringement Finally the Texas Courts ruling on implicit
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`releasing is
`
`claim construction ruling that is not binding on this Court With respect to the
`
`independent TCP releasing infringement proof Oracles only attempt
`
`to escape infringement is
`
`based on its attempt
`
`to mischaracterize epicRealms proof For all of these reasons epicRealm
`
`has established that there is no genuine issue of material fact that stands in the way of
`
`finding
`
`of infringement on summaryjudgment
`
`ARGUMENT
`
`Oracle argues that epicRealms motion should be denied because the Accused Oracle
`
`Products do not literally meet
`
`the intercepting limitation because the Web servers do not
`
`distinguish between dynamic and static requests
`
`the dispatcher limitation because the
`
`dispatchers are not separate executable processes or programs from the Web servers and
`
`Petitioner IBM – Ex. 1026, p. 6
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`the releasing limitation based on arguments that wrongly rely on rulings in the Texas case
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`involving the same patents and that again rely on
`
`claim construction not proposed by either
`
`party For the reasons discussed below Oracles three defenses to epicRealm motion should be
`
`rejected
`
`The Patent Legal Principles Are Well Settled
`
`Oracle cannot avoid summaryjudgment by relying on
`
`declaration that contradicts its
`
`own witnesss deposition testimony Anchor Wall Sys Inc
`
`Rockwood Retaining Walls Inc
`
`340 F.3d 1298 1314 Fed Cir 2003 Martin Merrell Dow Pharms Inc 851 F.2d 703 705-
`
`06 3d Cir 1988 Rainey Am Forest and Paper Ass 11 Inc 26
`
`Supp 2d 82 95 D.D.C
`
`1998 The Court should disregard Oracles attempt
`
`to change the prior sworn testimony of its
`
`own witnesses Rainey 26
`
`Supp 2d at 96 it is improper to consider the
`
`affidavit
`
`for purposes of plaintiffs motion for summaryjudgment
`
`Nor can Oracle avoid summaryjudgment through the submission of an expert declaration
`
`that contradicts the prior sworn testimony of Oracles witnesses and Oracles own documents
`
`Anchor 340 F.3d at 1314 holding that the district court properly granted motion to strike an
`
`experts contradictory declaration because
`
`party may not submit affidavits purporting to create
`
`genuine issue of fact if they simultaneously contradict prior sworn testimony by the
`
`MEHL/Biophile Intl Corp Milgrauin 192 F.3d 1362 1367 Fed Cir 1999 same
`
`Finally Oracle cannot create
`
`genuine issue of material fact
`
`through attorney argument
`
`that is unsupported by facts Glaverbel Societe Anonyme
`
`Northlake Mlctg
`
`Supply Inc 45
`
`F.3d 1550 1562 Fed Cir 1995 There must be sufficient substance other than attorney
`
`argument to show that the issue requires trial Scherer
`
`Rockwell Intl Corp 975 F.2d 356
`
`361 7th Cir 1992 Argument is not evidence upon which to base
`
`denial of summary
`
`judgment Anderson
`
`Liberty Lobby Inc 477 U.S 242 257 1986 the plaintiff must
`
`Petitioner IBM – Ex. 1026, p. 7
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`present affirmative evidence in order to defeat
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`properly supported motion for summary
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`judgment
`
`Oracles New Requirements For Intercepting Cannot Change The
`Fact That The Accused Oracle Products Perform Intercepting Under
`Each Partys Proposed Construction
`
`As explained in EpicRealms Memorandum in Support of its Motion for Partial Sunirnary
`
`Judgment of Literal Infringement
`
`intercepting occurs when the determination is made that
`
`page server rather than the Web server will process
`
`request D.J 224 at 21
`
`Shamos expressly testified that
`
`does not require
`
`distinction to be made between
`
`Furthermore Oracles expert Dr
`
`Petitioner IBM – Ex. 1026, p. 8
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`static and dynamic pages Exh 33 Shamos Texas Dep 1282-3 Plainly Oracles new
`
`requirement
`
`for dynamic versus static distinction is not what
`
`intercepting requires Thus
`
`Oracles argument completely misses the mark and is not
`
`sufficient basis for denying
`
`epicRealm partial summaryjudgment that the Accused Oracle Products literally infringe Claim
`
`11 of the 554 Patent ABB Automation Inc
`
`Schiumberger Res Mgmt Servs Inc 254
`
`Supp 2d 479 484
`
`Del 2002
`
`Oracle does not and cannot dispute that
`
`dynamic Web page request is intercepted at
`
`the Web server in each of the Accused Oracle Products under each partys proposed
`
`construction Oracle already has admitted that all of the Accused Oracle Products meet the
`
`intercepting limitation under either partys construction any system in which the web server
`
`processes some but not all requests has intercepting Exh 34 Shamos Dep 20620-20718
`
`Oracle does not dispute that the Web servers in the respective Accused Oracle Products
`
`process some but not all requests Therefore the Accused Oracle Products perform
`
`intercepting as matter of law under either partys construction
`
`Ic
`
`Petitioner IBM – Ex. 1026, p. 9
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`This is intercepting Thus Web Cache
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`does not merely route
`
`request
`
`Finally contrary to Oracles argument intercepting is different than dispatching
`
`because intercepting involves determining that
`
`page server rather than the Web server
`
`will process the request while dispatching involves determining which page server should
`
`process the request and sending the request to that page server Therefore the Accused Oracle
`
`Products literally meet the intercepting limitation
`
`Oracles New Requirement For Dispatcher Cannot Change The Fact
`That The Accused Oracle Products Rave Dispatcher Under Each
`Partys Proposed Construction
`
`Oracle does not deny that the Accused Oracle Web Cache Products and the Accused
`
`Oracle Application Server Products have code that performs dispatching under both parties
`
`constructions
`
`Therefore those products have
`
`dispatcher under that terms ordinary
`
`meaning Oracle argues only that the Accused Oracle Database Products do not perform
`
`dispatching because they do not examine or analyze request This is not true as already
`
`explained in EpicRealms Memorandum in Support of Its Motion for Partial Summary Judgment
`
`of Literal Infringement D.L 224 at 27-30 D.I 275 at 17-20 Thus the Accused Oracle
`
`Database Products perform dispatching as required by Claim 11 Therefore all of the Accused
`
`Oracle Products have
`
`dispatcher under that terms ordinary meaning and under Oracles
`
`broader construction
`
`Petitioner IBM – Ex. 1026, p. 10
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`Petitioner IBM – Ex. 1026, p. 11
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`Oracles supposed basis for this new infringement requirement
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`is that it allegedly would
`
`be impossible to route
`
`request from the Web server to the dispatcher
`
`if the dispatcher
`
`was not
`
`separate executable process This is not true because the request can be routed from
`
`one part of the code to another part of the code as shown on the left below
`
`Single Process
`
`Separate Processes
`
`Process
`
`Web server
`
`Functionality
`
`Request
`
`Additional Web
`server functionality
`
`Request
`
`Dispatcher
`
`Functionality
`
`Process
`Web server
`
`Functionality
`
`Additional Web
`server functionality
`
`Process
`Dispatcher
`
`Functionality
`
`It does not matter whether the code providing the dispatcher functionality is part of the same
`
`overall program or process as the code providing the Web server functionality Process
`
`on
`
`the left or whether they are written as two separate executable processes Processes
`
`and
`
`on
`
`the right
`
`In either case the code providing the Web serve functionality will
`
`first handle the
`
`request until it
`
`is intercepted and routed to the code providing the dispatcher
`
`functionality
`
`which can then route the request to the appropriate page server not sboswi
`
`Petitioner IBM – Ex. 1026, p. 12
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`Oracle argues that
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`recent ruling in the Texas Court advances Oracles position Oracle
`
`Br 10 n.3 This is not so The Texas Court ruled that
`
`if the operating system were relied
`
`on as part of the page server
`
`if the operating system were relied on as part of the Web
`
`server and
`
`if the Web server and page server were running on the sante operating
`
`system on the same machine then Web page request would not be routed from the Web
`
`server to the page server This has nothing to do with the dispatcher situation in the instant
`
`case because epicRealm motion does not rely on the operating system for the dispatcher to
`
`prove infringement
`
`In fact the Texas Courts ruling had nothing to do with the dispatcher
`
`Once again this separate executable program requirement disappears when Oracle tries to
`
`argue that various references anticipate the claims and therefore disclose the dispatcher
`
`limitation See D.I 267 at 24-33
`
`Thus if Web site that prepares
`
`dynamic Web page about the current price for
`
`certain requested stock e.g Coca-Cola
`
`identified by user Oracle argues that the users identification of that stock which indisputably
`
`must be sent to generate the dynamic Web page is not part of the dynamic Web page generation
`
`request if it
`
`is not part of the URL This is baseless The identity of the stock e.g Coca-Cola
`
`whose price the user requested is plainly part of the dynamic Web page generation request
`
`10
`
`Petitioner IBM – Ex. 1026, p. 13
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`11118
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`IL
`
`Oracles Ever Changing Requirements For Releasing Cannot Change
`The Fact That The Accused Oracle Products Perform Releasing
`Under Each Partys Proposed Construction
`
`Oracles position about what
`
`is required for releasing has apparently changed yet again
`
`in its own motion for summary judgment of noninfringement Oracle argued that the Accused
`
`Oracle Products do not perform releasing because the Web server was not released to
`
`process additional requests D.I 205 at 15 Subsequently the Texas Court soundly rejected
`
`this argument as explained in epicRealms Opposition to Oracles motion D.L 275 at 13 In
`
`its opposition to the instant motion this argument disappears again At this point it
`
`is not clear
`
`what Oracle claims is required to prove releasing
`
`In any event epicRealm has proved that the Accused Oracle Products meet the
`
`releasing limitation in two independent ways delegation and TCP Releasing
`
`Delegation
`
`11
`
`Petitioner IBM – Ex. 1026, p. 14
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`TCP Releasing
`
`The Accused Oracle Products literally meet the releasing limitation in second
`
`independent way via TCP releasing DI 224 at 20 26 34 Oracle opposes with mishmash
`
`of argmnents none of which has merit
`
`Oracles argument
`
`that freeing of resources is not releasing already has been rejected
`
`by the Texas Court which identified the issue as whether releasing or freeing should be
`
`construed to merely require releasing resources or allow the Web server to handle other requests
`
`that would not otherwise be handled Exh 36 Texas Order re Further Claim Constr at
`
`7-
`
`11 The Texas Court correctly resolved the issue against Oracles position
`
`Thus the Court agrees with
`that other requests
`should include both new and pre-existing requests and that
`freeing the web server to process other requests should not be
`limited to freeing the web server so that it may handle other
`requests that would not otherwise be handled but should also
`
`12
`
`Petitioner IBM – Ex. 1026, p. 15
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`include freeing the server so that it can process other pre-existing
`requestsi.e freeing the web server to processing resources
`that freeing Web
`The Court finds that Defendants proposal
`server happens only when Web server is able to handle
`new
`request for example when
`socket connection or child
`process becomes available is too limiting
`
`Id at 10 Oracle also argues without support that the TCP buffer memory is all
`
`that could
`
`possibly be released Oracle Br 37-38 This is not true
`
`Oracle also argues that
`
`if its construction of page server is adopted and
`
`if
`
`the
`
`only possible releasing argument available to epicRealm is via TCP acknowledgement
`
`message then Oracle cannot literally meet the releasing limitation under Padcom Inc
`
`Netmotion Wireless Inc C.A No 03-983-SLR 2006 WL 416865
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`Del Feb 22 2006
`
`Oracle Br 39 This is not true Even in this narrow circumstance the page serve software
`
`supplied by Oracle receives the request and instructs the operating system to send the TCP
`
`acknowledgement because without the Oracle page serve software the request could not be
`
`sent to the page server and thus no TCP acknowledgement would be sent
`
`In Padcom this
`
`Court held that
`
`the software instructs the operating system which network to retrieve it
`
`is in
`
`13
`
`Petitioner IBM – Ex. 1026, p. 16
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`fact selecting even though the operating system may perform the final step Id at
`
`Thus
`
`the operating system sending an acknowledgement does not prevent Oracle from literally
`
`infringing Claim II even under Oracles various assumptions If Oracle is trying to argue that
`
`TCP ACK comes from the operating system not the page server that argument also has been
`
`soundly rejected by the Texas Court Exh 36 at 3-7
`
`TCP
`Texas Jury Already Rejected Oracles Argument That
`Acknowledgement Cannot Be Releasing Under Oracles Proposed
`Construction
`
`The inflingers in the Texas case made the exact same argument
`
`that Oracle makes here
`
`namely that TCP Releasing is not releasing under the claim construction both adopted by the
`
`Texas Court and proposed by Oracle here said page server receiving said request and said page
`
`server performing an act separate from merely receiving the request to free the Web server to
`
`process other requests Exh 36 at D.I 187 at
`
`The Texas infringers argued vigorously that
`
`TCP acknowledgement message or
`ACK could not perform releasing as required by the patents in suit even highlighting the
`
`issue in closing argument
`
`Now want you to remember that
`case depends
`completely on this releasing depends completely on this TCP
`acknowledge message completely 100 percent hinges on that
`
`TCP remember the data transmission procedure protocol
`entire case for releasing hangs on an ACK hangs on
`
`an ACK
`
`And there is no other signal coming back Ladies and Gentlemen
`its only ACK And if ACK aint it
`it aint got it Okay Theyre
`not pointing to any other signal its got to be ACK or its nothing
`Its all or nothing right And theyre not pointing to anything
`else And ACK doesnt release it
`
`14
`
`Petitioner IBM – Ex. 1026, p. 17
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`Exit 37 Texas Trial Tr 163 3-1639 16417-16422 The Texas jury rejected this argument
`
`and found infringement Exh 38 Texas Jury Verdict Form at 1-2 Oracle argues under its
`
`June 30 2008 proposed construction which is the same as that adopted by the Texas Court that
`
`epicRealms releasing proof based upon the TCP ACK message cannot be releasing The
`
`Texas jurys verdict
`
`frirther demonstrates that Oracle is wrong
`
`Oracle Does Not Dispute That The Web Server Is Released In All Of
`The Accused Oracle Products
`
`Other than attorney argument Oracle does not even dispute that the Web server is
`
`released in all of the Accused Oracle Products
`
`not it does not change the fact that the Web server Web Cache is released as required by
`
`Thus even if Oracles argument were factually accurate it
`
`is
`
`Claim 11
`
`Oracles Remaining Arguments To Stave Off Summary Judgment Are
`Frivolous
`
`Oracles other asserted arguments do not change the fact that the Accused Oracle
`
`Products literally infringe Claim 11 as matter of law
`
`15
`
`Petitioner IBM – Ex. 1026, p. 18
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`

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`Document 339
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`Page 19 of 25 PagelD
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`11123
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`Oracle Already Admitted Reviewing All Of The Source Code Is Not
`Necessary To Establish Infringement
`
`Oracle repeatedly argues that epicRealm infringement proof is somehow insufficient
`
`or to use Oracles word conclusory because epicRealms expert Dr Finkel did not review all
`
`10 billion lines of source code produced at an escrow facility for the Accused Oracle Products
`
`This is nothing short of absurd Dr Finkel reviewed numerous documents describing the
`
`operation of the Accused Oracle Products Oracle does not and cannot dispute this fact These
`
`documents provided Dr Finkel with the evidence he needed to reach his opinions that the
`
`Accused Oracle Products literally infringe Claim 11 of the 554 Patent Dr Finkel also reviewed
`
`the deposition testimony of at least twelve Oracle witnesses designated to testify regarding the
`
`operation of the code in the Accused Oracle Products Agarwal Chandy Chatterjee
`
`Chidambaran Coirain Flildebrand Lan Mayer Nelson Patel Povinec and Surber Exh 39
`
`Finkel Rpt App
`
`at
`
`Oracle does not dispute that Dr Finkel reviewed the necessary documents and that the
`
`documents describe the operation of the Accused Oracle Products Oracle does not dispute that
`
`Dr Finkel reviewed the deposition transcripts of the Oracle deponents charged with testifying
`
`about the operation of the Accused Oracle Products
`
`The idea that Oracle is puffing out
`
`misinformation in its product manuals users guides and best practices documents is not an
`
`argument
`
`that any reasonable jury would believe Even more far fetched is the argument
`
`that
`
`Oracles own witnesses designated under Rule 30b6 did not accurately testify regarding the
`
`operation of the Accused Oracle Products Oracles suggestion that epicRealm cannot
`
`rely on
`
`what Oracles documents and witnesses said about the operation of the Accused Oracle Products
`
`is baseless
`
`16
`
`Petitioner IBM – Ex. 1026, p. 19
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`

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`Document 339
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`Filed 09/12/08
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`11124
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`Moreover Oracle acknowledges that Dr Firikel reviewed the key dispatching code for
`
`the Accused Oracle Products Oracle Br
`
`Not surprisingly that code confirmed that the
`
`Accused Oracle Products worked consistently with Oracles various descriptions of how they
`
`worked Finally even Oracles own expert acknowledged that this is not the type of patent that
`
`requires source code review Exh 34 Shamos Dep 27716-27817 Oracles complaint
`
`that
`
`Dr Finkel needed to review more source code is meritless
`
`New Argument Does
`Oracles Claim That Epidkealm Has Made
`Not Prevent The Courts Granting EpicRealms Motion
`
`EpicRealm Has Not Raised
`
`New Argument
`
`17
`
`Petitioner IBM – Ex. 1026, p. 20
`
`

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`11125
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`On The Merits Oracle Does Not Dispute EpicRealms
`Infringement Proof But Rather Merely Points Out An
`Additional Way The Accused Oracle Database Products Can
`Be Made To Work
`
`Oracles response to epicRealms example of one way the Accused Oracle Database
`
`Products infringe is to say that they could work another way too
`
`If the Accused Oracle Database Products
`
`literally infringe Claim 11 it does not matter that they may have other features too Kao Corp
`
`Unilever US Inc 441 F.3d 963 974 Fed Cir 2006
`
`18
`
`Petitioner IBM – Ex. 1026, p. 21
`
`

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`Document 339
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`11126
`
`Oracle Does Not Claim That EpicRealms Infringement Proof
`Based On For Example Modjdsql Is New
`
`Oracles Multiple Infringements Do Not Provide It With
`
`Defense
`
`Oracle also seems to continue to argue that it cannot be liable for infringement because it
`
`infringes multiple times Thus Oracle suggests that it somehow should be excused from
`
`infringement because epicRealm alleges that the same parts of Oracles products which perform
`
`the same function satisfy djfferent claim limitations in epicRealms different and conflicting
`
`19
`
`Petitioner IBM – Ex. 1026, p. 22
`
`

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`Document 339
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`Filed 09/12/08
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`Page 23 of 25 PagelD
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`11127
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`infringement theories Oracle Br
`
`emphases in original Oracles argument was
`
`adequately addressed in EpicRealms Memorandum in Opposition to Oracles Motion for
`
`Summary Judgment of Noninfringement DI 275 at 39-40
`
`III
`
`CONCLUSION
`
`For the foregoing reasons and those set forth in epicRealms Memorandum in Support of
`
`Its Motion for Partial Summary Judgment of Literal Infringement
`
`the Court should grant
`
`epicRealms motion for partial summary judgment of literal
`
`infringement
`
`20
`
`Petitioner IBM – Ex. 1026, p. 23
`
`

`
`Case 106-cv-00414-SLR
`
`Document 339
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`Filed 09/12/08
`
`Page 24 of 25 PagelD
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`11128
`
`POTTER ANDERSON
`
`CORROON LLP
`
`OF COUNSEL
`
`Harry
`
`Roper
`
`George
`Aaron
`
`Bosy
`Barlow
`
`Patrick
`
`Patras
`
`David
`
`Bennett
`
`Paul
`
`Margolis
`Benjamin Bradford
`Johnson
`Emily
`BLOCK
`JENNER
`Wabash Avenue
`330
`Chicago IL 60611-7603
`Tel 312 923-8305
`
`Dated September
`2008
`Public Version Dated September 12 2008
`31393 Oracle
`881231
`
`David
`
`By /s/ David Moore
`Horwitz 2246
`Richard
`Moore 3983
`Hercules Plaza
`1313
`Market Street
`Wilmington DE 19899
`Tel 302 984-6000
`rhorwitzjpotteranderson.com
`dmooreäpotteranderson.eom
`
`Floor
`
`Attorneys for Defendant/Counterclaim
`Plaintiff epicRealm Licensing LP
`
`21
`
`Petitioner IBM – Ex. 1026, p. 24
`
`

`
`Case 106-cv-00414-SLR
`
`Document 339
`
`Filed 09/12/08
`
`Page 25 of 25 PagelD
`
`11129
`
`IN THE UNITED STATES DISTRICT COURT
`EOR THE DISTRICT OF DELAWARE
`
`CERTIFICATE OF SERVICE
`
`David
`
`Moore hereby certify that on September 12 2008 the attached document was
`
`electronically filed with the Clerk of the Court using CM/BCE which will send notification to the
`
`registered attorneys of record that
`
`the document has been filed and is available for viewing and
`
`downloading
`
`further certify that on September 12 2008 the attached document was Electronically
`
`Mailed to the following persons
`
`Tunnell LLP
`
`Graham
`
`Mary
`Morris Nichols Arsht
`1201 North Market Street
`P.O Box 1347
`Wilmington DE 19899
`MGrahamMNAT.com
`
`Theodore
`
`Herhold
`
`Robert
`
`Artuz
`
`Eric
`
`Eric
`
`Hutchins
`
`Mercer
`Greco
`
`Joseph
`Nitin Gupta
`Townsend and Townsend and Crew LLP
`379 Lytton Avenue
`Palo Alto CA 94301
`OracleEpicrealm4townsend.com
`
`788480/31393
`
`Oracle
`
`James
`
`Gilliland
`
`Igor Shoiket
`Townsend and Townsend and Crew LLP
`Two Embarcadero Center
`Eighth Floor
`San Francisco CA 94111-3834
`OracleEpicrca1m@tovmsend.com
`
`Chad
`King
`Townsend and Townsend and Crew LLP
`1200 Seventeenth Street
`
`Suite 2700
`Denver CO 80202
`flrnnlaPn rrnIm 2itnnrncanA rnni
`
`Richard
`
`Is/DavidE Moore
`Horwitz
`Moore
`David
`Potter Anderson
`
`Corroon LLP
`
`Hercules Plaza Sixth Floor
`1313 North Market Street
`P.O Box 951
`Wilmington DE 19899-0951
`302 984-6000
`rhorwitz@potteranderson.com
`
`dmoore@potteranderson.com
`
`Petitioner IBM – Ex. 1026, p. 25