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`Case 2:l2—cv—O2829—JPM—tmp Document 60-1 Filed 07/30/13 Page 1 of 18 Page|D 603
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`
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`EXHIBIT 1
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`EXHIBIT 1
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`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 2 of 18 PageID 604
`
`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`Civil Action No. 2:12-cv-2829 JPM tmp
`
`))))))))))
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V,
`
`MICROSOFT CORPORATION,
`
`Defendant.
`
`DECLARATION OF LEERON G. KALAY IN SUPPORT OF MICROSOFT
`CORPORATION'S OPPOSITION TO B.E. TECHNOLOGY LLC'S
`MOTION TO DISMISS UNDER FED. R. CIV. P. 12(B)(6) AND
`MOTION TO STRIKE UNDER FED. R.CIV.P. 12(F)
`
`I, Leeron G. Kalay, declare:
`
`1. I am an attorney with Fish & Richardson P.C., counsel of record in this action tbr
`
`Defendant, Microsoft Corporation. ("Microsoft"). I am a member of the Bar of the State of
`
`Calitbrnia. I have personal knowledge of the matters stated in this declaration and would testify
`
`truthfully to them if called upon to do so.
`
`2. On Friday, October 19, 2012, in response to Microsoft's request for more specific
`
`allegations before Microsoft's answer to the Complaint was due, counsel for B.E. Technology
`
`LLC ("B.E.") left a voicemail indicating that B.E. is accusing "for the '314 Microsoft AdCenter
`
`and for the '290 Xbox 360." On Monday, October 22, 2012, Microsoft reiterated its request for
`
`more detailed allegations.
`
`3. On November 19, 2012, I met and conferred with counsel for B.E. Teclmology
`
`LLC ("B.E."), and again asked for more specific allegations before Microsoft's answer to the
`
`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 3 of 18 PageID 605
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`Complaint was due. B.E.'s counsel conveyed that B.E. is accusing Microsoft's "AdCenter," as
`
`well as the "app store" for the Microsoft Xbox 360 console and Surface. B.E. would not provide
`
`more detailed allegations until the Infringement Contention deadline set forth in the Patent Local
`
`Rules.
`
`4. Attached as Exhibit A is a true and correct copy of B.E. Technology's Initial
`
`Infringement Contention, served on January 7, 2013.
`
`5. Attached as Exhibit B is a true and correct copy of a February 1, 2013 letter from
`
`Leeron Kalay to Craig Kaufman.
`
`I declare under penalty of perjury under the laws of the United States that the foregoing is
`
`true and correct.
`
`Executed this 29th day of July, 2013 at Redwood City, California.
`
`Leeron G. Kalay
`
`

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`
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`EXHIBIT A
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`EXHIBIT A
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`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 5 of 18 PageID 607
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`v.
`
`MICROSOFT CORPORATION,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`Case No. 2:12-cv-2829 JPM-tmp
`
`JURY DEMAND
`
`INITIAL INFRINGEMENT CONTENTIONS AND DOCUMENT PRODUCTION
`ACCOMPANYING INITIAL INFRINGEMENT CONTENTIONS
`
`Plaintiff B.E. Technology, L.L.C. (“Plaintiff” or “B.E.”) hereby submits to Defendant
`
`Microsoft Corporation (“Defendant” or “Microsoft”) its Initial Infringement Contentions and
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`Document Production Accompanying Initial Infringement Contentions pursuant to Local Patent
`
`Rules 3.1 and 3.2.
`
`Plaintiff makes these contentions based upon information reasonably available to it as of
`
`this date. Plaintiff has not completed its preparation of this matter for trial and discovery has not
`
`yet begun. Because Plaintiff’s investigations are ongoing and discovery is not yet complete,
`
`Plaintiff reserves the right to amend, modify, supplement, or narrow any portion of its asserted
`
`claims and infringement contentions, including, but not limited to, the identification of the claims
`
`infringed by Defendant and of the products and/or services accused of infringement. In
`
`particular, B.E. reserves the right to supplement its contentions as necessary and in accordance
`
`with this Court’s Local Rules in light of Defendant’s future document production, interrogatory
`
`answers, admissions, disclosures, fact witness testimony expert witness evidence, additional
`
`discovery, future rulings from the Court, any amendments to the pleadings, any additional items
`
`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 6 of 18 PageID 608
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`of evidence, and/or for any other reason authorized by statute, rule, or applicable case law. B.E.
`
`similarly reserves the right to supplement its Initial Infringement Contentions to assert
`
`infringement of claims currently not addressed. B.E. further reserves the right to supplement its
`
`Initial Infringement Contentions and the associated infringement claim charts after Defendant
`
`identifies which claim elements it contends are not present in Defendant’s products and/or
`
`services, and the bases for any such contentions.
`
`I.
`
`L.P.R 3.1: INITIAL INFRINGEMENT CONTENTIONS.
`
`A.
`
`Identification Of Asserted Claims.
`
`Based on the information presently known and reasonably available to Plaintiff, Plaintiff
`
`identifies Claims 11, 12, 13, 15, 18, and 20 of U.S. Pat. No. 6,628,314 (“the ’314 patent”); and
`
`Claims 2-3 of U.S. Pat. No. 6,771,290 (“the ’290 Patent”) to be the Asserted Claims. These
`
`contentions of Asserted Claims are, at this stage in the proceedings, necessarily limited in the
`
`sense that Plaintiff has had limited access to information concerning the structure and function of
`
`Defendant’s products and/or services. Plaintiff therefore reserves the right to supplement these
`
`contentions as it obtains additional information concerning Defendant’s products and/or services
`
`over the course of discovery.
`
`The applicable statutory subsections of 35 U.S.C. § 271 for each of the Asserted Claims
`
`are as follows:
`
`Claims 11, 12, 13, 15, 18, and 20 of the ’314 Patent: 35 U.S.C. §§ 271(a).
`Claims 2-3 of the ’290 Patent: 35 U.S.C. §§ 271(a).
`
`Plaintiff reserves the right to amend, modify, supplement, or narrow these contentions
`
`pursuant to Local Patent Rule 3.11 as discovery in this case proceeds.
`
`- 2 -
`
`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 7 of 18 PageID 609
`
`B.
`
`Identification Of Accused Instrumentalities.
`
`Based on the information presently known to B.E., without the benefit of complete
`
`discovery from Defendant, B.E. presently accuses at least (but not limited to) the following of
`
`Defendant’s products and/or services of infringing the Asserted Claims of the ’314 Patent: Bing
`
`Ads, Microsoft Advertising, Windows Ads in App, any other products and/or services identified
`
`in the attached Appendix A, and all reasonably similar products and/or services (“Accused
`
`Instrumentalities”).
`
`Based on the information presently known to B.E., without the benefit of complete
`
`discovery from Defendant, B.E. presently accuses at least (but not limited to) the following of
`
`Defendant’s products and/or services of infringing the Asserted Claims of the ’290 Patent:
`
`Microsoft Surface, Microsoft Xbox 360, any other products and/or services identified in the
`
`attached Appendix B, and all reasonably similar products and/or services (“Accused
`
`Instrumentalities”). In addition, B.E. presently accuses all of Defendant’s products and/or
`
`services with the following programs, features, software, firmware, or applications of infringing
`
`the Asserted Claims of the ’290 patent: Xbox Live, Xbox Music, Apps Marketplace, Windows
`
`Store, Xbox Video, and Xbox Games (also, “Accused Instrumentalities”).
`
`Based on the information presently known to B.E., B.E. contends that the Asserted
`
`Claims of the ’314 Patent and ’290 Patent are infringed by the Accused Instrumentalities. B.E.
`
`believes that discovery will reveal additional Accused Instrumentalities, products, and/or services
`
`that infringe the ’314 Patent and ’290 Patent, and B.E. explicitly reserves the right to amend,
`
`modify, supplement, or narrow its contentions to identify additional Accused Instrumentalities,
`
`products, and/or services pursuant to Local Patent Rule 3.11.
`
`- 3 -
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`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 8 of 18 PageID 610
`
`C.
`
`Claim Chart Identifying Claim Elements Present In Accused
`Instrumentalities.
`
`Based on the information presently known to B.E., without the benefit of complete
`
`discovery from Defendant, B.E. provides the attached Appendix A (which explains how the
`
`Accused Instrumentalities and other products/services infringe each of the Asserted Claims of
`
`the ’314 Patent) and Appendix B (which explains how the Accused Instrumentalities and other
`
`products/services infringe each of the Asserted Claims of the ’290 Patent). B.E.’s attached
`
`Appendices are incorporated by reference as if fully set forth herein. The infringement
`
`contention charts appended hereto are exemplary and not limiting, and address the Asserted
`
`Claims without the benefit of full discovery. Any citations included in the infringement
`
`contention charts are exemplary only, and should not be construed to be limiting.
`
`In the attached Appendices containing B.E.’s infringement contention charts, B.E. has
`
`subdivided each Asserted Claim to better explain where each claim element may be found with
`
`the respective Accused Instrumentalities and other products/services. The subdivisions in the
`
`appended infringement contention charts should not be taken as an indication of the boundaries
`
`of claim elements with respect to doctrine of equivalents, or any other issue. Additionally, the
`
`Accused Instrumentalities and Defendant’s other products/services may infringe the Asserted
`
`Claims in multiple ways. B.E. reserves the right to provide an alternative claim mapping or
`
`infringement contention.
`
`B.E. reserves the right to amend, modify, supplement, or narrow these contentions
`
`pursuant to Local Patent Rule 3.11 as discovery in this case proceeds.
`
`D.
`
`Identification Of Direct Infringement Underlying Allegations Of Indirect
`Infringement.
`
`B.E. contends that the Asserted Claims of the ’314 Patent and ’290 Patent are directly
`
`infringed by Defendant. Defendant, without B.E.’s authority, directly infringes the Asserted
`
`- 4 -
`
`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 9 of 18 PageID 611
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`Claims of the ’314 Patent and ’290 Patent under 35 U.S.C. § 271(a) by making, using, offering to
`
`sell, or sell its Accused Instrumentalities and other products/services within the United States, or
`
`imports into the United States its Accused Instrumentalities and other products/services.
`
`B.E. reserves the right to amend, modify, supplement, or narrow these contentions
`
`pursuant to Local Patent Rule 3.11 as discovery in this case proceeds.
`
`E.
`
`Identification Of Elements Present Literally And Present Under The
`Doctrine Of Equivalents.
`
`Based on the information presently available to B.E., B.E. contends that each Asserted
`
`Claim is literally met in the Accused Instrumentalities and/or other Defendant products/services.
`
`At present, B.E. knows of no elements of the Asserted Claims where the doctrine of equivalents
`
`would change the infringement analysis set forth in the attached infringement claim charts.
`
`Without the benefit of the Court’s claim construction, B.E. presently believes that Defendant’s
`
`Accused Instrumentalities and other products/services literally infringe the Asserted Claims of
`
`the ’314 Patent and ’290 Patent.
`
`Regardless, B.E. also contends that each Asserted Claim is met in the Accused
`
`Instrumentalities and/or other Defendant products/services under the doctrine of equivalents.
`
`Specifically, to the extent a claim element is not met literally, 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 Asserted Claims and Defendant’s Accused Instrumentalities, products and/or
`
`services, such differences are insubstantial.
`
`Information regarding the formulations of the Accused Instrumentalities and Defendant’s
`
`products/services, and the processing conditions used to manufacture the Accused
`
`Instrumentalities and Defendant’s products/services, is either confidential or is not publically
`
`- 5 -
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`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 10 of 18 PageID 612
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`available. Following discovery regarding Defendant’s products/services, Accused
`
`Instrumentalities, and technical information relating to the Accused Instrumentalities and
`
`Defendant’s products/services, B.E. reserves the right to amend, modify, supplement, or narrow
`
`these contentions pursuant to Local Patent Rule 3.11 as discovery in this case proceeds.
`
`Moreover, because discovery has not yet commenced, B.E. reserves the right to further apply the
`
`doctrine of equivalents to each and every Asserted Claim element after full discovery from
`
`Defendant, or as appropriate in response to the Court’s legal determination of issues, including,
`
`without limitation, the construction of the Asserted Claims.
`
`Should Defendant contend that any element or limitation of the Asserted Claims is absent
`
`in an Accused Instrumentality and/or Defendant’s products/services, B.E. reserves the right to
`
`demonstrate that the allegedly missing element or limitation is present in the Accused
`
`Instrumentality and/or Defendant’s products/services under the doctrine of equivalents.
`
`F.
`
`Identification Of Priority Date.
`
`The ’314 patent was filed on October 30, 2000, claiming priority from Division of U.S.
`
`Patent Application No. 09/118,351, filed July 17, 1998, now U.S. Patent No. 6,141,010. Thus,
`
`the ’314 Patent and each asserted claim are entitled to a priority date of at least as early as July
`
`17, 1998. The ’290 patent was filed on July 16, 1999, claiming priority from Continuation-in-
`
`Part of U.S. Patent Application No. 09/118,351, filed July 17, 1998, now U.S. Patent No.
`
`6,141,010. Thus, the ’290 Patent and each asserted claim are entitled to a priority date of at least
`
`as early as July 17, 1998. B.E. reserves the right to present evidence that the ’314 Patent and the
`
`’290 Patent are entitled to an earlier priority date based on an earlier conception of the claimed
`
`inventions and an earlier diligent reduction to practice.
`
`- 6 -
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`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 11 of 18 PageID 613
`
`G. Willful Infringement.
`
`Based on the information presently known to B.E., without the benefit of complete
`
`discovery from Defendant, B.E. contends that Defendant willfully infringed the ’314 Patent and
`
`’290 Patent beginning no later than September 2012 when B.E. filed its Complaint for Patent
`
`Infringement against Defendant. Plaintiff believes that discovery will reveal that Defendant was
`
`aware of the ’314 Patent and the ’290 Patent long before September 2012, but Defendant
`
`nevertheless proceeded with its infringing conduct. At all times when Defendant was aware of
`
`the ’314 Patent and the ’290 Patent, Defendant undertook no efforts to design its
`
`products/services around the ’314 Patent and the ’290 Patent to avoid infringement despite
`
`Defendant’s knowledge and understanding that its products/services infringe these patents.
`
`As such, Defendant proceeded with the infringing conduct with knowledge of the ’314
`
`Patent and the ’290 Patent. Moreover, Defendant proceeded in the face of an unjustifiably high
`
`risk that it was infringing the claims of valid and enforceable ’314 Patent and ’290 Patent.
`
`Moreover, Defendant cannot formulate a credible defense based on non-infringement.
`
`Because Defendant is very familiar with the formulations of the Accused Instrumentalities and
`
`its other products/services, as well as the method of manufacturing the Accused Instrumentalities
`
`and Defendant’s other products/services, Defendant is aware that each and every element of each
`
`Asserted Claim of the ’314 Patent and ’290 Patent is present in the Accused Instrumentalities
`
`and Defendant’s other products/services. Defendant cannot articulate a convincing non-
`
`infringement argument.
`
`Given the facts and circumstances available prior to and during Defendant’s infringing
`
`actions, a reasonable person in Defendant’s position would have appreciated a high likelihood
`
`that acting in Defendant’s manner would infringe the ’314 Patent and the ’290 Patent.
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`- 7 -
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`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 12 of 18 PageID 614
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`Furthermore, Defendant knew or should have known of the unjustifiably high risk that it was
`
`infringing the ’314 Patent and the ’290 Patent, each of which is valid and enforceable.
`
`II.
`
`L.P.R. 3.2: DOCUMENT PRODUCTION ACCOMPANYING INITIAL
`INFRINGEMENT CONTENTIONS
`
`A.
`
`Disclosure, Transfer, Sale, Offers To Sell Claimed Invention.
`
`Based on the information presently known to B.E., B.E. is not aware of any responsive,
`
`relevant, non-privileged, non-immune documents that correspond to this category. B.E. reserves
`
`the right to supplement this disclosure if, and as, warranted.
`
`B.
`
`Conception And Reduction To Practice.
`
`Based on the information presently known to B.E., B.E. refers Defendant to the
`
`documents produced in conjunction with the service of this disclosure and identified by Bates
`
`production numbers BE00000001-BE00002165, BE00002779-BE00002870.
`
`C.
`
`File Histories.
`
`Based on the information presently known to B.E., B.E. refers Defendant to the file
`
`histories produced in conjunction with the service of this disclosure and identified by Bates
`
`production numbers BE00002166-BE00002778.
`
`D.
`
`Ownership.
`
`Based on the information presently known to B.E., B.E. refers Defendant to the
`
`assignment records produced in conjunction with the service of this disclosure and identified by
`
`Bates production numbers BE00002871-BE00002873.
`
`Dated: January 7, 2013
`
`Respectfully submitted,
`
`
`
`s/Craig R. Kaufman
`Robert E. Freitas (CA Bar No. 80948)
`Craig R. Kaufman (CA Bar No. 159458)
`James Lin (CA Bar No. 241472)
`Qudus B. Olaniran (CA Bar No. 267838)
`FREITAS TSENG & KAUFMAN LLP
`
`
`
`- 8 -
`
`

`
`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 13 of 18 PageID 615
`
`100 Marine Parkway, Suite 200
`Redwood Shores, CA 94065
`Telephone: (650) 593-6300
`Facsimile: (650) 593-6301
`rfreitas@ftklaw.com
`ckaufman@ftklaw.com
`jlin@ftklaw.com
`qolaniran@ftklaw.com
`
`
`Richard M. Carter (TN B.P.R. #7285)
`Adam C. Simpson (TN B.P.R. #24705)
`MARTIN, TATE, MORROW & MARSTON, P.C.
`6410 Poplar Avenue, Suite 1000
`Memphis, TN 38119-4839
`Telephone: (901) 522-9000
`Facsimile: (901) 527-3746
`rcarter@martintate.com
`asimpson@martintate.com
`
`Attorneys for Plaintiff B.E. Technology, L.L.C.
`
`
`
`
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`- 9 -
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`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 14 of 18 PageID 616
`
`CERTIFICATE OF SERVICE
`I hereby certify that on this 7th day of January, 2013, a copy of the foregoing was
`served upon the following counsel by email:
`
`Bradley E. Trammell
`Adam Baldridge
`BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ
`165 Madison Avenue, Suite 2000
`Memphis, Tennessee 38103
`Telephone: (901) 577-2121
`Facsimile: (901) 577-2102
`btrammell@bakerdonelson.com
`abaldridge@bakerdonelson.com
`
`Counsel for Defendant MICROSOFT CORPORATION
`
`s/ Elizabeth Kim
`Elizabeth Kim
`
`
`
`
`
`
`
`
`
`
`
`- 10 -
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`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 15 of 18 PageID 617
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`
`
`EXHIBIT B
`
`EXHIBIT B
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`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 16 of 18 PageID 618
`Fish & Richardson p.c.
`
`
`
`Frederick P. Fish
`1855-1930
`
`W.K. Richardson
`1859-1951
`
`
`
`
`
`February 1, 2013
`
`500 Arguello Street
`Suite 500
`Redwood City, California
`94063-1526
`
`Telephone
`650 839-5070
`
`Facsimile
`650 839-5071
`
`Web Site
`www.fr.com
`
`Leeron G. Kalay
`650 839-5196
`
`Email
`Kalay@fr.com
`
`
`
`VIA ELECTRONIC MAIL
`
`
`
`Craig R. Kaufman
`Freitas Tseng & Kaufman, LLP
`100 Marine Pkwy
`Redwood City, CA 94065
`
`Re:
`
`B.E. Technology, L.L.C. v. Microsoft Corp.,
`Civil Action No. 2:12-cv-2829 JPM
`
`Dear Craig:
`
`
`
` I write regarding significant deficiencies in B.E. Technology’s LPR 3.1 Initial
`Infringement Contentions. It is impossible to determine what B.E. Tech’s theory
`of infringement against Microsoft is, particularly as to the ’314 patent which
`includes snippets of disparate technologies throughout a single chart. None alone
`are alleged to meet all claim limitations, nor do they function as a single platform.
`At a minimum, we ask that B.E. provide a corrected Appendix A setting forth its
`infringement theory as to the ’314 patent by separately identifying where each
`limitation in each Accused Instrumentality is found. Additional deficiencies in
`B.E.’s infringement contentions are discussed below.
`
`First, as noted above, B.E. fails to provide a chart “identifying specifically where
`each limitation of each asserted claim is found within each Accused
`Instrumentality” as required by the Patent Local Rule 3.1(c). B.E.’s cover
`pleading identifies Bing Ads, “Microsoft Advertising” and Windows Ads in App.
`Instead of identifying where each limitation is found within each of these
`“Accused Instrumentalities,” Appendix A consists of a single chart that
`generically refers to “The Microsoft Accused Product” that mixes and matches
`citations to three different advertising platforms. No coherent infringement
`theory is discernable. Moreover, B.E. seems to ignore large amounts of publicly
`available information about Microsoft’s advertising solutions that it could have
`used to prepare contentions to meet the basic requirements of the local rules.
`
`
` The only explicit reference to BingAds in Appendix A is a screenshot
`citing to http://advertising.microsoft.com/splitter on page 1 of the chart.
`B.E. also mentions www.bing.com on page 12 of the chart, provides no
`further explanation or support. B.E.’s infringement contentions fail to
`
`~
`
`atlanta
`
`austin
`
`boston
`
`dallas
`
`delaware
`
`houston
`
`munich
`
`new york
`
`silicon valley
`
`southern california
`
`twin cities
`
`washington, dc
`
`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 17 of 18 PageID 619
`
`
`F i s h & R i c h a r d s o n p.c.
`
`Craig R. Kaufman
`February 1, 2013
`Page 2
`
`
`
`identify specifically where each limitation of claims 11, 12, 13, 15, 18 and
`20 are found in BingAds. As such, B.E.’s infringement contentions fail to
`comply with the patent local rules and fail to provide any notice to
`Microsoft as to the scope or bases for B.E.’s allegations with respect to
`Bing Ads.
`
` The only explicit references to Window 8 Ads in Apps are screenshots of
`a web page cited on pages 8-9 of the contentions for claim 11. B.E.’s
`infringement contentions fail to identify specifically where each limitation
`of claims 11, 12, 13, 15, 18 and 20 are found in Windows 8 Ads in Apps.
`Again, B.E.’s infringement contentions fail to comply with the patent local
`rules and fail to provide any notice to Microsoft as to the scope or bases
`for B.E.’s allegations with respect to “Windows Ads in Apps.”
`
`
`
`
`
` With respect to “Microsoft Advertising,” this is mentioned in your cover
`pleading and heading of Appendix A, but is not the name of a Microsoft
`product. B.E.’s allegations also refer to “at least one website included in
`the Microsoft Accused Product, including www.msn.com and
`ads1.msads.net;” B.E.’s contentions separately refer to “Microsoft’s
`websites, www.microsoft.com and www.bing.com.” B.E. Tech. Inf.
`Contentions, App. A at 10, 12. It is unclear what B.E. means by “website
`included in the Microsoft Accused Product.” Again, B.E. appears to
`ignore most the publicly available information concerning Microsoft’s
`advertising solutions.
`
`
`Second, B.E. purports to identify “any other products and/or services identified in
`the attached [appendices], and all reasonably similar products and/or services.”
`These broad and unrestricted descriptions of “Accused Instrumentalities” do not
`comply with P.L.R. 3.1(b)’s requirement that B.E. separately identify “each
`Accused Instrumentality that each party claiming infringement contends
`infringes.” As such, Microsoft objects to B.E.’s vague and unlimited definition of
`“Accused Instrumentalities” beyond those specifically identified in B.E.’s
`contentions.
`
`Third, with respect to claim 3 of the ’290 patent, B.E. has not provided any
`citations in support of its allegations. Please confirm that B.E. is withdrawing all
`of its allegations of infringement of claim 3 of the ’290 patent by Microsoft.
`
`Please confirm that B.E. will serve corrected infringement contentions addressing
`each of the deficiencies identified above. We are prepared to meet and confer on
`February 5, please confirm your availability. B.E.’s failures are severely
`prejudicing Microsoft’s ability to prepare its defense and we reserve the right to
`seek all appropriate relief from the Court.
`
`

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`Case 2:12-cv-02829-JPM-tmp Document 60-1 Filed 07/30/13 Page 18 of 18 PageID 620
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`F i s h & R i c h a r d s o n p.c.
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`Craig R. Kaufman
`February 1, 2013
`Page 2
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`Sincerely,
`
`Leeron G. Kalay