Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 1 of 15 PageID #: 2641
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:15-cv-01274-JRG-RSP
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`JURY TRIAL DEMANDED
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`LEAD CASE
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`DEFENDANTS' MOTION FOR LEAVE TO
`SUPPLEMENT INVALIDITY CONTENTIONS
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`Defendants Toyota Motor Corporation, Toyota Motor Sales U.S.A., Inc., Toyota Motor
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`Manufacturing, Texas, Inc., Toyota Motor Manufacturing Kentucky, Inc., Toyota Motor
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`Manufacturing Mississippi, Inc., American Honda Motor Co., Inc., Honda of America Mfg., Inc.,
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`Honda Manufacturing of Alabama, LLC, Honda Manufacturing of Indiana, LLC, Hyundai Motor
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`America, Hyundai Motor Manufacturing Alabama, LLC, Kia Motors America, Inc., Kia Motors
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`Manufacturing Georgia, Inc., Nissan North America, Inc., and Nissan Motor Co., Ltd.,
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`(collectively, “Defendants”) hereby move for leave to supplement their Invalidity Contentions
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`served on January 19, 2016.
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`Supplementation is requested to add citations to and analysis of, source code from
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`Blitzsafe’s own prior art “TOY/PAN” interfaces that Defendants recently received via third party
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`subpoenas. Defendants have previously disclosed their contentions related to these prior art
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`TOY/PAN interfaces in their Invalidity Contentions of January 19, 2016. But Defendants could
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`not include cites or analysis of the source code because it had not been produced by Blitzsafe.
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`1
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`BLITZSAFE TEXAS, LLC,
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`Plaintiff,
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`v.
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`HONDA MOTOR CO., LTD., ET AL,
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` Defendants.
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 2 of 15 PageID #: 2642
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`Eventually, Defendants were able to obtain a copy of this source code on June 14, 2016, but not
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`from Blitzsafe. Rather, Defendants obtained the missing source code via a subpoena to a third
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`party (Ford Motor Company), who had uncovered the source code in 2015 during a litigation
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`with Blitzsafe's predecessor Marlowe Patent Holdings, LLC, ("MPH") involving the same '786
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`patent at issue here.
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`As discussed in more detail below, documents in the Ford production led Defendants to
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`learn that Mr. Marlowe's counsel in the prior Ford litigation, Mr. Kun Cho, may also have
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`retained a copy of the missing source code. Defendants thereafter subpoenaed Mr. Cho and
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`obtained another copy of the missing source code on July 6, 2016; Defendants also learned that
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`Blitzsafe’s present counsel (Brown Rudnick, LLP) had teamed up with Mr. Cho to help represent
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`MPH at the same time that Mr. Cho received the source code in the Ford litigation. Exs. 11 and
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`17 at BK0001167-8. Defendants’ also learned that Mr. Cho indicated that he would provide a
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`copy of the source code to Blitzsafe after receiving it from Ford on February 18, 2015. Ex. 8.
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`Defendants learned this after Blitzsafe's present counsel had represented to Defendants on
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`April 29, 2016 that Blitzsafe does not possess or have control of the missing source code, and
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`that the source code was not provided to MPH during the Ford litigation. Ex. 15.
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`Good cause exists for this motion at least because Defendants have diligently pursued
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`this information, and any delay in disclosing these contentions is a direct result of Blitzsafe's
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`failure to retain and produce its own source code. Blitzsafe will not be prejudiced by this
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`supplementation because Blitzsafe should already know how its own source code works.
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`Defendants have met and conferred with Plaintiff regarding this motion and also provided
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`Plaintiff with a copy of the Proposed Supplemental Invalidity Contentions; Plaintiff stated that it
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`does not consent to this motion. Ex. 16.
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 3 of 15 PageID #: 2643
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`I.
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`FACTUAL BACKGROUND
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`The TOY/PAN interfaces surfaced as relevant prior art in an earlier litigation between
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`Blitzsafe’s predecessor, Marlowe Patent Holdings, LLC (“MPH”) and Ford Motor Corporation
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`(“Ford”). Ex. 1 at 1.1 In the Ford case, Ford asserted that the TOY/PAN interfaces invalidated
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`certain claims based on an analysis of the interface hardware. Exs. 1- 4. Ford also asserted that
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`the TOY/PAN interfaces rendered the ‘786 patent unenforceable due to inequitable conduct,
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`because the named inventor, Ira Marlowe, did not disclose material information about these
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`interfaces while prosecuting the application that led to the '786 patent. Exs. 1-3. At the time of
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`that assertion, Ford did not have the source code for the interfaces and therefore could not
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`analyze the source code. Ex. 4. This is because before, during, and after the Ford case, Mr.
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`Marlowe claimed that he lost critical information pertaining to these prior art TOY/PAN
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`interfaces. According to Mr. Marlowe, documents relating to these interfaces were destroyed in
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`a flood, the computer files relating to these interfaces were destroyed in a computer crash, and he
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`did not have the source code which defines many of the features that are included in these
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`interfaces. Ex. 1 at 2; Ex. 6. Moreover, after Ford identified the TOY/PAN interfaces as a
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`critical issue in the litigation, Mr. Marlowe contacted the Internet Archive (a.k.a. The Wayback
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`Machine www.Internetarchive.org) and demanded that they delete the historical versions of his
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`Blitzsafe website. Ex. 1 at 2; Ex. 6 at Pars. 7-13. According to Ford, these historical versions
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`1 Exhibits cited in this motion are attached to the Declaration of John F. Rabena, Esq. also filed herewith. Two of
`the Exhibits (9 and 12) contain Blitzsafe’s confidential information and accordingly are being filed under seal.
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`3
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 4 of 15 PageID #: 2644
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`contained evidence that the TOY/PAN interfaces were prior art since they had been sold prior to
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`the filing of the ‘786 patent application. Ex. 1 at 2.2
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`Based in part on the repeated loss of this information and its relationship to Ford's
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`invalidity and inequitable conduct defenses, Ford filed a Motion for Rule 11 Sanctions in that
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`case. Exs. 2, 3. In its Opposition to that Motion, MPH admitted that the TOY/PAN interfaces
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`were prior art and contended only that the TOY/PAN interfaces were not material prior art
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`because they did not include the claimed “device presence signal” and the claimed “third
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`connector.” Ex. 6, e.g., p. 3 (admitting the interfaces were “prior art”), p. 9 (denying that the
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`prior art had a “third connector”), and p. 13 (denying that the prior art had a “device presence
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`signal”).
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`Ford’s Motion for Rule 11 Sanctions was denied in 2013 as premature (Ex. 7); but in
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`2015 Ford managed to locate a copy of the TOY/PAN source code from the third-party author of
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`that code, Edward Fischer. Ex. 10, Pars. 5-6. Blitzsafe's current counsel, Brown Rudnick, LLP,
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`joined attorney Kun Cho in representing MPH in the Ford case at least as early as February 4,
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`2015. Exs. 11, 17 at BK0001167-68. Ford’s attorneys provided MPH’s attorney Cho, with a
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`copy of the production from Edward Fischer on February 18, 2015, and Mr. Cho indicated that
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`he would give those documents to Mr. Marlowe. Ex. 8 (“these documents will be provided to
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`Blitzsafe, unless you otherwise object within a week.”). The next week (February 25, 2015),
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`Mr. Marlowe contacted Mr. Fischer directly, stating that it was improper for him to have retained
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`that code. Ex. 9. MPH thereafter dropped its case against Ford in May 2015.
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`2 Fortunately, Ford was able to locate a backup version of www.internetarchive.org in Egypt, so the main version
`has since been restored. Ex. 1, p. 2.
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`4
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 5 of 15 PageID #: 2645
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`Turning to the instant case, Defendants included detailed analysis of the TOY/PAN prior
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`art interfaces based on an analysis of the hardware in their Amended Answers and Preliminary
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`Invalidity Contentions. E.g., cv-15-1274 DI 83, Pars. 12-45; Ex. 12.3 On March 3, 2016,
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`Defendants’ wrote to Blitzsafe and explicitly requested the source code for these products as well
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`as any documents relating to them, and any documents that Mr. Edward Fischer produced in the
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`prior Ford litigation. Ex. 13, e.g., Pars. 1, 26, 27. On April 25, 2016, Defendant Toyota again
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`requested inspection of the prior art TOY/PAN source code. Ex. 14 at 1. On April 29, 2016,
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`Toyota's counsel confirmed Blitzsafe's counsel's representation that "the source code for the
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`TOY/PAN products is not within Plaintiff’s possession and was not produced or otherwise
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`provided to Plaintiff or Marlowe Patent Holdings (MPH) during MPH’s prior litigations." Ex.
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`15, p. 1. Then on May 16, 2016, Defendants issued subpoenas to Ford Motor Company and its
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`litigation counsel Brooks Kushman, PC. Ford’s counsel produced documents pursuant to those
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`subpoenas on June 14, 2016, which included the source code from the prior art TOY/PAN
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`interfaces. Rabena Decl. Par. 19. The production from Ford’s counsel also included emails
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`indicating that MPH’s counsel did in fact have this source code as recently as February 19, 2015,
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`and that MPH's counsel gave to Blitzsafe the source code that Mr. Fischer produced. Ex. 8.
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`Defendants then subpoenaed MPH’s attorney Kun Cho, who in fact did have a copy of
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`the TOY/PAN source code, contrary to the representations of Blitzsafe's Brown Rudnick
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`attorneys. Rabena Decl. Par. 20.
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`3 As set forth in the Rabena Declaration, Par. 13, Exhibit 12 is a redlined version of the relevant portions of
`Defendants’ Invalidity Contentions that were served on January 19, 2016. The redlines show the proposed
`supplementation, whereas the non-redlined text is original as served on January 19, 2016.
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 6 of 15 PageID #: 2646
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`Nevertheless, since Blitzsafe did not produce the source code in this case, Defendants had
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`to obtain it from Ford’s counsel on June 14, 2016 and MPH’s other counsel on July 6, 2016.
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`On June 22, 2016, Defendants asked Blitzsafe if it would consent to this supplementation
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`and on June 23, 2016 Blitzsafe said it would not. Ex. 16. Defendants prepared their draft
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`supplemental contentions (Ex.12), provided a copy to Blitzsafe on July 11, 2016, and met and
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`conferred with Blitzsafe on July 18, 2016, but Blitzsafe maintained that it would oppose this
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`motion. Ex. 16.
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`II. ARGUMENT
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`Defendants’ Motion should be granted for the following reasons: (1) Defendants have
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`been diligent in their search for prior art as well as in their efforts to promptly supplement their
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`Invalidity Contentions; (2) the evidence that the Defendants seek to add is highly material and
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`Defendants would be deprived of meritorious defenses if it was excluded; and (3) Plaintiff will
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`not be prejudiced by the addition of the supplemental evidence to the case. See S&W Enters.,
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`L.L.C. v. Southtrust Bank of Alabama, 315 F.3d 533, 535-36 (5th Cir. 2003) (discussing factors
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`used to analyze a motion to amend for “good cause”). See also Mondis Tech., Ltd. v. LG Elecs,
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`Inc., 2011 U.S. Dist. LEXIS 48376, *10 (court considers four factors in ruling on motion for
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`leave to supplement invalidity contentions after the deadline for serving these contentions has
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`passed: “(1) the explanation for the failure to meet the deadline; (2) the importance of the thing
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`that would be excluded; (3) potential prejudice in allowing the thing that would excluded; and (4)
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`the availability of a continuance to cure such prejudice.”)
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`As set forth below, Defendants meet each of these factors and are thus able to
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`demonstrate good cause for the supplementation of their P.R. 3-3 Invalidity Contentions.
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 7 of 15 PageID #: 2647
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`a. Defendants Have Been Diligent
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`The “good cause” standard incorporated into P.R. 3-6(b) requires a showing of diligence.
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`Defendants identified the prior art TOY/PAN interfaces as a basis for both invalidity and
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`inequitable conduct, in their Amended Complaints and Invalidity Contentions. E.g., cv-15-1274
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`DI 83, Pars. 12-45; Ex. 12. Had Blitzsafe conducted an adequate pre-filing investigation for
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`relevant documents including contacting its counsel who had represented them in the prior Ford
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`litigation involving the exact same '786 patent, and complied with its discovery obligations in the
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`instant case, then Defendants would have had the missing source code early in the case, and
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`would have cited to the source code in its Invalidity Contentions.
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`On March 3, 2016, Defendants sent Blitzsafe a letter outlining specific categories of
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`documents that Defendants expected to see in Blitzsafe's production, including documents
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`relating to the TOY/PAN prior art interfaces. Ex. 13, Pars. 1, 26, 27. Defendants diligently
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`reviewed Blitzsafe's document production and on April 25, 2016, requested inspections of all of
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`Blitzsafe's source code, including the source code for the prior art TOY/PAN interfaces. Ex .14.
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`On April 29, 2016, Blitzsafe misrepresented that it did not have the source code for this prior art
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`product, and that its predecessor MPH never possessed the source code in any prior litigation.
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`Ex. 15 at 1; Ex. 18 at 1. So Defendants pursued other avenues to find the source code (e.g.,
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`subpoenas to third parties that may have had it, including MPH's counsel and Ford's counsel).
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`Shortly after the source code was produced by third party Ford on June 14, 2016, Defendants
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`provided a copy to Blitzsafe and notified Blitzsafe of their intent to supplement the Invalidity
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`Contentions. Ex. 16 at 1-2. This is what is required by the Patent Rules. See O2 Micro Int’l
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`Ltd. v. Monolithic Powers Sys., Inc., 467 F.3d 1355, 1365-66 (Fed. Cir. 2006) (local patent rules
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`requiring defendants to provide early notice of their invalidity contentions and to proceed with
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 8 of 15 PageID #: 2648
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`diligence in amending those contentions when new information comes to light in the course of
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`discovery seek to balance the rights granted to defendants by the Federal Rules of Civil
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`Procedure to develop facts supporting defenses with the need for certainty as to the parties’ legal
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`theories).
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`Defendants also provided Blitzsafe with the materials required by P.R. 3-3 and 3-4, on
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`July 11, 2016. Ex. 19. Accordingly, there was no unreasonable delay in Defendants’
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`disclosure of the recently- discovered evidence that pertains to Blitzsafe's own product. Rather,
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`any delay that resulted was a direct result of either Blitzsafe's intentional destruction or
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`withholding of the source code, or Blitzsafe’s failure to check with its own counsel.
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`b. The Supplemental Evidence is Highly Relevant to Defendants’ Invalidity
`Defenses
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`The source code for the prior art TOY/PAN interfaces is highly relevant to Defendants’
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`invalidity defenses. For example, in the Ford case, Marlowe took the position (before Ford
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`obtained the missing source code) that the TOY/PAN interfaces did not anticipate certain claims
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`of the '786 patent because they did not generate the claimed “device presence signal.” Ex. 5 at 3.
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`The source code makes it clear that these interfaces did in fact generate the “device presence
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`signal.” Ex. 12, e.g., pp. 33-36, and as stated above, MPH dropped the Ford case after Ford
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`obtained the source code from Mr. Fischer.
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`Defendants would be substantially prejudiced if the Court denied them the opportunity to
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`rely upon this source code in challenging the validity of the Patents-in-Suit. Additionally,
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`granting Defendants’ Motion serves the strong public interest in allowing the validity of patents
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`to be challenged in court. Smithkline Beecham Corp. v. Apotex Corp., 403 F.3d 1331, 1354-
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 9 of 15 PageID #: 2649
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`55 (Fed. Cir. 2005) (“public policy requires that only inventions which fully meet the statutory
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`standards are entitled to patents” and “there is a stronger public interest in the elimination of
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`invalid patents than in the affirmation of a patent as valid”) (citations omitted). Finally,
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`Blitzsafe's litigation misconduct and inadequate pre-filing investigation should not be rewarded.
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`Blitzsafe failure to timely produce the missing source that was clearly under its control, is the
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`reason why Defendants were unable to cite to the source code in its Invalidity Contentions.
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`c. Plaintiff is Not Unfairly Prejudiced By the Supplementation
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`Plaintiff will not be unfairly prejudiced by this supplementation. Defendants are not
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`asking to add a new unknown prior art reference, but rather are asking to supplement evidence of
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`the same prior art product that was timely disclosed under the Local Patent Rules - evidence that
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`Blitzsafe created, knew about, and should have retained and disclosed from the beginning.
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`Blitzsafe, on the other hand, has a history of repeatedly losing relevant evidence
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`pertaining to these TOY/PAN prior art interfaces. According to Mr. Marlowe, the documents
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`relating to these interfaces were destroyed in a flood (Ex. 6, Pars. 2-4), the computer files
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`relating to these interfaces were destroyed in a computer crash (Ex. 6, Pars. 5-6), and he did not
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`have the source code which defines many of the features that are included in these interfaces. Ex.
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`15. Mr. Marlowe even went to the effort of demanding the deletion of the Way Back machine
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`( www.Internetarchive.org) archives of his Blitzsafe website, in an attempt to destroy evidence
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`that the TOY/PAN interfaces had been sold prior to the filing of the 786 patent application. Ex. 1;
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`Ex. 6, Pars 7-13.
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`During the Ford litigation, the source code resurfaced via a subpoena to the third-party
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`author of the source code who had retained a copy. On February 18, 2015, Mr. Marlowe’s
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`9
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 10 of 15 PageID #: 2650
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`attorneys in the Ford litigation received a copy of the source code from Ford (Ex. 8). On
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`February 25, 2015, one week after it resurfaced, Mr. Marlowe complained to that author for
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`providing the code to Ford. Ex. 9. Brown Rudnick, LLP, Blitzsafe's current attorneys, were part
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`of MPH's legal team in the Ford case at that time. Ex. 11, Ex. 17. Yet somehow, and
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`apparently without any investigation, Brown Rudnick represented that neither they, nor Blitzsafe,
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`nor MPH had a copy of this source code, and that the source code was not produced in the prior
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`MPH litigation. Exs. 15 at 1, 18 at 1.
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`Mr. Marlowe and Blitzsafe should not be rewarded by repeatedly 'losing' evidence related
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`to his prior art TOY/PAN interfaces. Here, Defendants are not even asking to add a new prior art
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`reference; rather Defendants are simply asking to add the most probative evidence that explains
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`the true operation of Blitzsafe's own prior art products that Defendants have asserted from the
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`beginning.
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`III. CONCLUSION
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`For each of the foregoing reasons, Defendants respectfully request that the Court find that
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`Defendants have met the good cause standard required to supplement their Invalidity
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`Contentions and grant Defendants leave to supplement their Invalidity Contentions with the
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`materials provided in the attached Exhibit 12.
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`Defendants also request any other relief that the Court deems appropriate in light of
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`Blitzsafe’s litigation misconduct as detailed above, including reimbursement of fees and costs for
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`having to obtain the code from third parties including Blitzsafe’s former counsel, and for having
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`to bring this motion.
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 11 of 15 PageID #: 2651
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` Respectfully submitted:
`
`/s/ J. Thad Heartfield
`J. Thad Heartfield
`Texas Bar No. 09346800
`thad@heartfieldlawfirm.com
`THE HEARTFIELD LAW FIRM
`2195 Dowlen Road
`Beaumont, TX 77706
`Telephone: (409) 866-3318
`Facsimile: (409) 866-5789
`
`William H. Mandir (pro hac vice)
`wmandir@sughrue.com
`John F. Rabena (pro hac vice)
`jrabena@sughrue.com
`Brian K. Shelton (pro hac vice)
`bshelton@sughrue.com
`Fadi N. Kiblawi (pro hac vice)
`fkiblawi@sughrue.com
`Margaret M. Welsh (pro hac vice)
`mwelsh@sughrue.com
`SUGHRUE MION PLLC
`2100 Pennsylvania Avenue, NW
`Washington, DC 20037
`Telephone: (202) 293-7600
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`ATTORNEYS FOR DEFENDANTS
`TOYOTA MOTOR CORPORATION,
`TOYOTA MOTOR SALES U.S.A., INC.,
`TOYOTA MOTOR MANUFACTURING,
`TEXAS, INC., TOYOTA MOTOR
`MANUFACTURING KENTUCKY, INC.,
`and TOYOTA MOTOR
`MANUFACTURING MISSISSIPPI, INC.
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`11
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`Dated: July 21, 2016
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`

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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 12 of 15 PageID #: 2652
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`
`/s/ Joseph M. Beauchamp (w/permission)
`Joseph M. Beauchamp
`Texas State Bar No. 24012266
`Email: jmbeauchamp@jonesday.com
`H. Albert Liou
`Texas State Bar No. 24061608
`Email: aliou@jonesday.com
`Erin C. Dickerman 24087358
`Texas State Bar No.
`Email: edickerman@jonesday.com
`JONES DAY
`717 Texas Street, Suite 3300
`Houston, Texas 77002-2712
`Telephone: (832) 239-3939
`Facsimile: (832) 239-3600
`
`Joseph Melnik
`California State Bar No. 255601
`Email: jmelnik@jonesday.com
`Jones Day
`1755 Embarcadero Road
`Palo Alto, California 94303
`Telephone: (650) 739-3939
`Facsimile: (650) 739-3900
`
`Randy Akin
`Texas State Bar No. 00954900
`Email: gra@randyakin.com
`G.R. (Randy) Akin, P.C.
`3400 W. Marshall Avenue, Suite 300
`Longview, Texas 75604
`Telephone: (903) 297-8929
`Facsimile: (903) 297-9046
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`ATTORNEYS FOR DEFENDANTS
`AMERICAN HONDA MOTOR CO., INC.;
`HONDA OF AMERICA MFG., INC.;
`HONDA MANUFACTURING OF
`ALABAMA, LLC; AND HONDA
`MANUFACTURING OF INDIANA, LLC
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 13 of 15 PageID #: 2653
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`
`/s/ Paul R. Steadman (w/permission)
`Paul R. Steadman
`Illinois Bar No. 6238160
`paul.steadman@dlapiper.com
`Matthew D. Satchwell
`Illinois Bar No. 6290672
`matthew.satchwell@dlapiper.com
`DLA PIPER LLP
`203 N. LaSalle St., Suite 1900
`Chicago, IL 60601-1293
`Telephone: 312.368.2111
`Facsimile: 312.236.7516
`
`Patrick S. Park
`California Bar No. 246348
`patrick.park@dlapiper.com
`DLA PIPER LLP
`20000 Avenue of the Stars, Suite 400
`North Tower
`Los Angeles, CA 90067
`Telephone: 310.595.3000
`Facsimile: 310.595.3300
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`ATTORNEYS FOR DEFENDANTS
`HYUNDAI MOTOR AMERICA, HYUNDAI
`MOTOR MANUFACTURING ALABAMA,
`LLC, KIA MOTORS AMERICA, INC., and
`KIA MOTORS MANUFACTURING
`GEORGIA, INC.
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 14 of 15 PageID #: 2654
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`/s/ Sean N. Hsu (w/permission)
`Jeffrey S. Patterson
`Texas Bar No. 15596700
`jpatterson@hdbdlaw.com
`Sean N. Hsu
`Texas Bar No. 24056952
`shsu@hdbdlaw.com
`HARTLINE DACUS BARGER DREYER
`LLP
`8750 North Central Expressway
`Suite 1600
`Dallas, Texas 75231
`Telephone: (214) 369-2100
`Facsimile: (214) 369-2118
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`ATTORNEYS FOR DEFENDANTS
`NISSAN NORTH AMERICA, INC. and
`NISSAN MOTOR CO., LTD.
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`Case 2:15-cv-01274-JRG-RSP Document 125 Filed 07/21/16 Page 15 of 15 PageID #: 2655
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that counsel of record who are deemed to have
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`consented to electronic service are being served with a copy of the foregoing DEFENDANTS'
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`MOTION FOR LEAVE TO SUPPLEMENT INVALIDITY CONTENTIONS via the
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`Court’s CM/ECF system, per Local Rule CV-5(a)(3), on this 21st day of July, 2016.
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`/s/ J. Thad Heartfield
`J Thad Heartfield