One Financial Center
`Boston, MA 02111
`617-542-6000
`617-542-2241 fax
`www.mintz.com
`
`
`Jinnie L. Reed | 617 348 3093 | JLReed@mintz.com
`
`
`
`
`
`
`
`January 17, 2018
`
`BY EMAIL
`
`Louis J. Hoffman
`Hoffman Patent Firm
`7689 East Paradise Lane, Suite 2
`Scottsdale, Arizona 85260
`louis@valuablepatents.com
`
`Re: DDR Holdings, LLC v. Priceline.com LLC, et al., Case No. 1:17-cv-00498-ER
`[Consolidated]
`
`Counsel:
`
`I write regarding Interrogatory No. 1 and the definition of “Accused Instrumentality”
`
`therein. As noted separately in our January 17, 2018 letter, DDR has not identified the “Accused
`Instrumentality” with specificity. I will not repeat my statements made therein here, however,
`the same concerns regarding the scope of the “Accused Instrumentality” also affect our ability to
`respond to Interrogatory No. 1. (See J. Reed January 17, 2018 Ltr regarding Infringement
`Contentions). These same issues were also raised with DDR during our meet and confer on
`Monday January 8, 2018.
`
`I.
`
`Interrogatory No. 1
`
`As an initial matter, Interrogatory No. 1 requests, in part, the identity of “each Entity that
`has received revenue resulting from that Entity’s participation in an Accused Instrumentality….”
`The term “Accused Instrumentality” is defined within DDR’s First Set of Interrogatories as “any
`instrumentality owned, operated, or controlled by defendant and identified in DDR’s Complaint
`against You or in ‘DDR Holdings, LLC’s Disclosures’ served upon You….” Similarly, DDR’s
`Initial Disclosures refer back to DDR’s complaint in defining the Accused Instrumentality
`(“DDR believes that defendant refers to the accused product (including method and system)
`described in the complaint as its ‘ecommerce platform’’”). DDR’s Claim Chart includes the
`same vague reference to “Shopify’s Ecommerce Platform.”
`
`DDR’s Amended Complaint makes the same vague allusions to Shopify’s ecommerce
`platform. The “characteristics of Shopify’s platform that cause infringement” are as follows:
`
`Shopify directly and literally infringes the above-described claims
`through its ecommerce platform. The specific characteristics of
`Shopify’s platform that cause infringement of the asserted patents
`are as follows: ... When Internet visitors activate a link, using a
`computer (e.g., desktop or laptop) or portable computing device
`
`Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
`
`BOSTON | LONDON | LOS ANGELES | NEW YORK | SAN DIEGO | SAN FRANCISCO | STAMFORD | WASHINGTON
`
`DDR Holdings, LLC - Ex. 2023
`Shopify, Inc. v. DDR Holdings, LLC
`IPR2018-01008
`
`

`

`Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
`
`January 17, 2018
`Page 2
`
`
`(phone, tablet, etc.) on a source web page controlled by a “host,”
`i.e., a Shopify customer, the Internet visitor’s computer is
`redirected to a URL at which Shopify’s server system is
`accessible….
`
`DDR’s First Amended Complaint, ¶ 16. As you are aware, Shopify offers multiple services
`and/or products. See, e.g., https://www.shopify.com/. The term “ecommerce platform” can refer
`to each and every Shopify services and/or products, including the following: Online Store,
`Shopify POS, Retail Package, Buy Button, Pinterest Buyable Pins, Facebook Shop, Facebook
`Messenger, Amazon, and Enterprise. Id.
`
`To the extent Interrogatory No. 1 seeks information for any Entity which has derived
`revenue from all products and/or services under Shopify’s ecommerce platform, that request is
`overbroad and not proportional to the needs of the case. To the extent Interrogatory No. 1 seeks
`revenue relating “e-commerce pages hosted by Shopify” linked to a “respective customer
`website is hosted by a web-hosting company (i.e., not Shopify),” please identify the specific
`product and/or service you are accusing of infringing the patents in suit. As noted above, a
`catalog of Shopify’s products and services are publicly available at its homepage.
`
`Further, the term “controlled by” is ambiguous in Interrogatory No. 1 and this was raised
`on the Monday January 8, 2018 meet and confer. As noted above in the excerpt of your
`Amended Complaint, you state that the source web page is “controlled” by a Shopify customer.
`In your clarifying examples sent on January 9, 2018, you identified that the client web sites were
`hosted by non-Shopify and non-Shopify customer entities (the IP addresses for the hosts are
`registered to CariNet, Inc. and CloudFlare, Inc.). Please clarify the definition of “controlled” as
`used in Interrogatory No. 1 with respect to web pages (i.e., whether control means legal
`ownership, supervisory rights, etc…).
`
`In summary, please identify the “Accused Instrumentality” with specificity, and please
`provide the meaning of the term “controlled” as used in Interrogatory No. 1 by Monday, January
`22, 2018. If you are unable or unwilling to meet this request, we request a meet and confer on
`Thursday, January 18, 2018 at 4 PM EST.
`
`Sincerely,
`
`/s/ Jinnie L Reed
`Jinnie L. Reed
`
`Counsel for Defendant Shopify, Inc.
`
`Page 2
`
`