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`EXHIBIT D
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`EXHIBIT D
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`

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`_
`
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`‘E3’ Case 2:12—cv—02823—JPM—tmp Document 39-4 Filed 02/13/13 Page 2of5 Page|D 229
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`
`
`ARNOLD & PORTER LLP
`
`J,,,...,5_ Blackburn
`James.Blackburn@aporter.com
`+1 213.243.4063
`+1 213.243.4199 Fax
`
`777 South Figueroa Street
`Forty-Fourth Floor
`Los Angeles, CA 90017-5844
`
`February 6, 2013
`
`VIA E-MAIL |CKAUFMAN@FTKLAW.COM|
`
`Craig R. Kaufman
`Freitas Tseng & Kaufman LLP
`100 Marine Parkway, Suite 200
`Redwood Shores, CA 94065
`Telephone: +1 650.593.6300
`Facsimile: +1 650.593.6301
`
`ckaufman@ftklaw.com
`
`Re:
`
`B.E. Technology, LLC v. Barnes & Noble, Inc.
`JPM, W.D. Tenn.)
`
`(Case No. 2:12-cv-282-
`
`Dear Mr. Kaufman:
`
`I write to request that B.E. Technology, LLC (“B.E.”) rectify several deficiencies
`in B.E.’s Infringement Contentions pursuant to Local Patent Rule (“LPR”) 3.1 served on
`January 7, 2013 (“Contentions”).
`
`LPR 3.1 is clear in its requirement that plaintiff identify, “[s]eparately for each
`asserted claim, each Accused Instrumentality that [it] contends infringes, including the
`name or model number,” and serve therewith a “chart identifying specifically where each
`limitation of each asserted claim is found within each Accused Instrumentality.” (LPR
`3.1(b)-(c).) B.E. does specifically and separately accuse, and identify by model, eight of
`Barnes & Noble’s Nook products.1 However, B.E. also universally accuses “all of
`Defendants’ products and/or services with the following programs, features, software,
`
`(1) Nook Color; (2) Nook First Edition 3G + WiFi;
`1 The eight products identified are:
`(3) Nook First Edition Wi-Fi; (4) Nook HD; (5) Nook HD+; (6) Nook Simple Touch with
`Glowlight; (7) Nook Simple Touch; and (8) Nook Tablet (collectively, “Accused
`Products”).
`
`

`
`Case 2:12-cv-02823-JPM-tmp Document 39-4 Filed 02/13/13 Page 3 of 5 PageID 230
`‘ Case 2:12—cv—O2823—JPM—tmp Document 39-4 Filed 02/13/13 Page 3 of 5 Page|D 230
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`
`
`ARNOLD & PORTER LLP
`
`Craig R. Kaufman
`February 6, 2013
`Page 2
`
`firmware, or applications of infringing the Asserted Claims of the ‘290 patent: Nook
`Store, Netflix, and Hulu Plus.” (Contentions at 3.) While such a generic accusation
`appears deficient even under a generous standard, B.E. fails to provide a corresponding
`claim chart for such unidentified products in violation of the Local Rules. Absent
`supplementation, it is Barnes & Noble’s understanding that any product beyond those
`eight specifically identified — and charted — products are not properly at issue in this case.
`
`Even with respect to those eight products, however, B.E.’s corresponding claim
`charts pursuant to LPR 3. l(c) fail to provide, as required by Local Rule, any meaningful
`contention as to “where each limitation of each asserted claim is found.” Each chart is
`composed primarily of device screenshots coupled with a recitation of the claim
`language.
`(See, e.g., Appendix A, claims 2[b]-[d], all Accused Products.) Notably
`absent is any meaningful explanation of how a given product feature reads onto an
`asserted claim element. (See generally id.) Even further, the contentions for claim 3 do
`not contain a single reference to a specific product or feature and merely state:
`
`The infringing programs as set forth above are operable upon execution
`and in response to selection by a user of one of said items to access the
`associated information resource over the network using a browser.
`
`This recitation of the claim itself, along with the deficiencies outlined above with respect
`to claim 2 of the infringement charts, fail to satisfy the standard set forth under LPR 3.1.
`
`Similarly, for every claim limitation following the last stand-alone screenshot of
`each Accused Product, B.E. includes the following boilerplate language related to the
`doctrine of equivalents:
`
`To the extent this element is not literally met, it is met under the doctrine
`of equivalents because they perform substantially the same function, in
`substantially the same way, to achieve substantially the same result. To the
`extent that any differences are alleged to exist between the claim element
`and Defendant’s Accused Instrumentalities, products and/or services, such
`differences are insubstantial.
`
`This non-specific recitation of the law is not tied to any particular Accused Product or
`product feature(s), and more significantly, does not provide Barnes & Noble any
`indication of B.E.’s alleged factual basis for its claim of infringement under the doctrine
`of equivalents. This too is inadequate under the Local Rules, which require B.E. to
`
`

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`Case 2:12-cv-02823-JPM-tmp Document 39-4 Filed 02/13/13 Page 4 of 5 PageID 231
`‘ Case 2:12—cv—O2823—JPM—tmp Document 39-4 Filed 02/13/13 Page 4 of 5 Page|D 231.
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`_____________________________________
`ARNOLD & PORTER LLP
`
`Craig R. Kaufman
`February 6, 2013
`Page 3
`
`identify specifically, on an element-by-element basis, where in each Accused Product
`each limitation supposedly is present by an equivalent. This deficiency, along with the
`deficiencies outlined above, severely handicaps Bames & Noble’s ability to formulate
`responsive non-infringement contentions under LPR 3.3.
`
`In light of at least these shortcomings, please indicate by February 15, 2013
`whether B.E. will supplement its Contentions and when it will do so. In the meantime,
`we are available to meet and confer about any issue raised herein.
`
`Very truly yours,
`
`es S. Blackburn
`
`

`
`Case 2:12-cv-02823-JPM-tmp Document 39-4 Filed 02/13/13 Page 5 of 5 PageID 232
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`. F
`
`Turner, Gloria
`Wednesday, February 06, 2013 4:25 PM
`'ckaufman@ftklaw.com'
`Blackburn, James S.
`B.E. Technology, LLC v. Barnes & Noble, Inc. (Case No. 2:12-cv-282-JPM, W.D. Tenn.)
`02-06—2013 Ltr. to Craig R. Kaufman.pdf
`
`Turner, Gloria
`
`rom:
`Sent:
`To:
`Cc:
`Subject:
`Attachments:
`
`Dear Mr. Kaufman,
`
`Please see the attached letter from James Blackburn.
`
`Regards,
`
`Gloria Turner
`Legal Assistantfor
`James S. Blackburn
`Nicholas Kennedy
`Jeanna M. Beck
`
`Arnold & Porter LLP
`777 South Figueroa Street, 44th Fl.
`Los Angeles, CA 90017-5844
`
`Telephone: +1 213.243.4113
`
`WIl’W,fl‘I1()1(lQ0rIC’I‘. mm