Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 1 of 12 PageID #: 2680
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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` Case No. 12-CV-00799-LED
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`INVENSYS SYSTEMS, INC.,
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`Plaintiff,
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`vs.
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`Defendants,
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`and
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`MICRO MOTION INC., USA,
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`Counterclaim-Plaintiff,
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`vs.
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`INVENSYS SYSTEMS, INC.,
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`Counterclaim-Defendant.
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`REPLY BRIEF OF EMERSON ELECTRIC CO. IN SUPPORT OF ITS
`MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT
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`4844-8456-1431.
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 2 of 12 PageID #: 2681
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`I.
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`INTRODUCTION
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`Emerson Electric Co. (“Emerson”) is entitled to judgment as a matter of law that it has
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`not infringed the patents asserted by Plaintiff Invensys Systems, Inc. (“Invensys”). In opposing
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`Emerson’s Motion (Dkt. No. 83), Invensys responds with core allegations based on inaccurate
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`facts and inadmissible hearsay. Invensys admits that its central argument is based on an
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`“inference” – i.e., that Emerson Process Management (“EPM”) is actually the same as Emerson.
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`(Invensys’s Resp., Dkt. No. 92 at 4, 8, 9.) This inference is wrong. In addition:
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`
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`None of the “evidence” relied upon by Invensys actually supports the allegation
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`that Emerson makes, uses, offers to sell, sells, imports, or repairs the accused Micro Motion, Inc.
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`(“Micro Motion”) Coriolis flowmeters.
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`
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`Emerson has produced documents and is in compliance with the terms of the
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`Discovery Order in this case. Invensys’s position relies on the fact that Emerson has no
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`documents that affirmatively state the negative – that Emerson does not make, use, offer for sale,
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`sell, import, or repair the accused Coriolis flowmeters.
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`
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`Although Invensys claims a need for discovery on this issue, Invensys has been
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`aware of Emerson’s non-infringement defense for more than a year, since at least December 12,
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`2012. (See Declaration of Linda E.B. Hansen (“Hansen Decl.”) ¶ 2 & Ex. A.) At no time since
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`that date has Invensys made any formal discovery request on the facts relevant to this motion.
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`(Id. ¶ 6.)
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 3 of 12 PageID #: 2682
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`II.
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`A.
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`ARGUMENT
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`The “Evidence” Relied Upon By Invensys Does Not Raise A Question Of
`Fact As To Whether Emerson Infringes The Invensys Patents-In-Suit
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`Invensys improperly relies on vague statements made by one of its employees, Robert
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`Arias, as primary support for its arguments, and relies on unverified internet sources for the rest.
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`Using those improper and inaccurate sources, Invensys then draws what it acknowledges are
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`mere inferences to make its argument.
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`1.
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`EPM is a business platform and has no employees
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`As set forth in Emerson’s initial brief in support of this motion, Emerson is a corporation
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`with various subsidiaries and divisions. (Emerson Br., Dkt. No. 83 at 2, 11.) Invensys’s
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`Response Brief admits that its allegation that EPM and Emerson are the same is merely an
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`inference. (Dkt. No. 92 at 4, 8, 9.) The inference is without basis, and is incorrect. It should not
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`be relied upon.
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`EPM is a business platform (a brand) used by various Emerson subsidiaries. (Jan. 30,
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`2014 Declaration of James Davis (“Sec. Davis Decl.”) ¶¶ 4-5.) EPM is not a legal business
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`entity of any type. (Id.) It has no employees. (Id. ¶ 6.) It is simply a platform name used to
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`identify various Emerson subsidiaries that are in the process management business. (Id. ¶¶ 4-5.)
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`Because EPM is just a brand and has no employees, none of the people identified by
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`Invensys as employees of EPM are actually employed by EPM. (Id. ¶ 6; see also id. ¶ 7.)
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`Similarly, none of the claimed EPM employees are employed by Emerson. (See id. ¶¶ 7, 9-14.)
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`Most of the people identified in the Invensys Response Brief are Micro Motion employees. (See
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`id. ¶¶ 9-11.)
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`Invensys is correct that some people may say they represent EPM; however, that does not
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`mean that they are employees of Emerson. Micro Motion sometimes contracts with third party
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 4 of 12 PageID #: 2683
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`sales people. (Sec. Davis Decl. ¶ 15.) Because some of these third parties represent more than
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`one business in the EPM platform, the third parties may sometimes introduce themselves as EPM
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`representatives. They are not employees of Emerson or EPM. They are third parties who sell
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`Micro Motion products as well as products of other EPM businesses. (See id.) As discussed in
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`Emerson’s opening brief at 11-13, the mere use of the EPM brand does not expose Emerson to
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`liability. See Ronald A. Katz Tech. Licensing, L.P. v. Verizon Commc’ns, Inc., No. 01-5627,
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`2002 U.S. Dist. LEXIS 24117, at *3-4, 7-10 (E.D. Pa. Dec. 18, 2002).
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`2.
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`The Arias Declaration does not support Invensys’s claims
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`Nothing in the Declaration of Robert Arias, (Dkt. No. 92-1), supports Invensys’s
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`argument that Emerson makes, uses, offers to sell, sells, imports, or repairs the accused Coriolis
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`flowmeters. Instead, Invensys’s position regarding Emerson’s alleged direct and indirect
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`infringement rests entirely on Mr. Arias’s hearsay allegations. Mr. Arias states that unnamed
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`“EPM representatives” contacted him and his clients at unspecified times and locations. (See
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`Dkt. No. 92-1 ¶¶ 5-6.) Allegations that some unnamed persons at some unknown place and
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`unknown time identified themselves to unknown people in some unknown ways as
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`representatives of EPM does not create a genuine issue of material fact. Not only is it impossible
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`that any of these people actually worked for EPM—since EPM is not a legal entity and has no
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`employees—but EPM is not the same as Emerson. Invensys’s casual switching between the
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`names does not make it so.
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`The only mention of Emerson in the Arias Declaration is in paragraph 11, (Dkt. No. 92-1
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`¶ 11), where Mr. Arias first claims that Emerson recently participated in a sales demonstration of
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`the accused Coriolis flowmeters. Mr. Arias then admits that the alleged presenter for Emerson
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`identified himself as a representative of EPM. (Id.) Mr. Arias later refers to this person as “the
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 5 of 12 PageID #: 2684
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`EPM representative.” (Id.) However, Mr. Arias then claims that “Emerson was awarded” some
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`of the business. (Id.) Mr. Arias is wrong. A review of the sales to that customer shows that all
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`sales between 2006 and the present, were made either by a Micro Motion employee, or an
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`independent third party sales representative that is not an employee of Emerson. (See Sec. Davis
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`Decl. ¶¶ 16-17.)
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`Invensys’s Response Brief at page 7 also claims that paragraph 9 of Mr. Arias’s
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`Declaration states that individuals who repair Micro Motion Coriolis flowmeters identified
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`themselves as representatives of Emerson. (Dkt. No. 92 at 7.) This is demonstrably false. Mr.
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`Arias’s Declaration does not support that statement, either in paragraph 9 or anywhere else.
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`Another demonstrably false statement by Invensys is the entire first paragraph at the top
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`of page 10 of the Invensys Response Brief. (Id. at 10.) Invensys claims that Emerson employs
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`sales representatives who sell the accused products, and they identify themselves as Emerson
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`employees. As support for this false statement, Invensys cites to paragraphs 5 and 6 of the Arias
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`Declaration. Nowhere in paragraphs 5 or 6 of the Arias Declaration (or anywhere else, either)
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`does Mr. Arias make that claim. Rather, Mr. Arias stated that “EPM representatives” contacted
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`him. (Dkt. No. 92-1 ¶¶ 5-6.)
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`As discussed below, the Arias Declaration should be entirely disregarded as hearsay.
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`Nevertheless, even if credited, nothing in Mr. Arias’s Declaration actually states that Emerson
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`sold (makes, uses, offers to sell, imports, repairs, or markets) the accused Coriolis flowmeters.
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`Mr. Arias, at most, indicates that certain unnamed individuals stated that they “represented”
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`EPM. This, of course, does not prove that any of those unnamed individuals was actually
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`employed by Emerson, or was working on behalf of Emerson.
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 6 of 12 PageID #: 2685
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`3.
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`Parts of the Arias Declaration should be stricken as improper hearsay
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`According to Fed. R. Civ. P. 56(c)(4), hearsay cannot be relied upon to defeat a motion
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`for summary judgment:
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`An affidavit or declaration used to support or oppose a motion
`must be made on personal knowledge, set out facts that would be
`admissible in evidence, and show that the affiant or declarant is
`competent to testify on the matters stated.
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`Fed. R. Civ. P. 56(c)(4). Additionally, as set forth in L.R. CV-56, the “proper summary
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`judgment evidence” used to support or oppose a motion means “admissible evidence” L.R. CV-
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`56(d). Because of these rules, it is not proper for the court to consider hearsay evidence in
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`affidavits. Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th. Cir. 1992).
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`Despite this clear directive, a declaration based on hearsay is all that Invensys has provided in
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`support of its claims. Although Mr. Arias’s Declaration claims that he has “personal knowledge
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`of the facts set forth,” (Dkt. No. 92-1 ¶ 1), the paragraphs that follow show that this claim is
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`inaccurate.
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`Mr. Arias’s Declaration sets forth what unidentified individuals allegedly informed him
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`or others about who they represented, (id. ¶¶ 5-11) – which is classic hearsay. Additionally, Mr.
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`Arias does not provide any names, dates, or locations to support his allegations. For example, in
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`paragraph 10 of his Declaration, Mr. Arias states that “EPM certified technicians visited my
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`clients on site . . . .” (Id. ¶ 10.) Mr. Arias does not indicate who these alleged EPM technicians
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`were, who the clients were, whether Mr. Arias was present to witness the visits, how it was
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`determined that the visitors were EPM certified, or even when or where the visits took place.
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`This is hearsay, and as such, provides no information about whether Emerson makes, uses, offers
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`to sell, sells, imports, or repairs the accused Coriolis flowmeters.
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 7 of 12 PageID #: 2686
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`Mr. Arias also sets forth his view of the marketing strategy of EPM, (id. ¶¶ 12-13),
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`despite the fact that Mr. Arias has never worked for Emerson, Micro Motion, or any EPM-related
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`entity. There is nothing to support such a hearsay claim, and it should be disregarded.
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`Because they contain hearsay, these statements in the Arias Declaration should not be
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`considered and should be stricken. There is nothing in the remaining paragraphs of the Arias
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`Declaration that in any way tends to show that Emerson makes, uses, offers for sale, sells,
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`imports, or repairs Coriolis flowmeters.
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`4.
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`Emerson does not induce infringement
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`As with the rest of its Response Brief, Invensys’s argument relating to Emerson’s alleged
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`induced infringement is strewn with errors and hearsay, and admittedly relies on inferences from
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`websites instead of evidence. Invensys’s argument is supported by blogs that are not written by
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`employees of Emerson and only mentions names of people who are not employed by Emerson.
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`a.
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`The internet sources should be ignored as unreliable hearsay
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`The website pages that Invensys points to in its Response do not reflect the activities of
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`Emerson. Even if they did, courts have recognized that printouts from websites should be
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`closely scrutinized for reliability. United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000)
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`(“Any evidence procured off the Internet is adequate for almost nothing, even under the most
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`liberal interpretations of the hearsay exception rules.”) (quoting St. Clair v. Johnny’s Oyster &
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`Shrimp, Inc., 76 F. Supp. 2d 773, 775 (S.D. Tex. 1999)).
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`When faced with documents from the internet, other courts have found them to be
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`insufficient and have refused to rely on them. See VBConversions LLC v. Now Solutions, Inc.,
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`No. CV 13-000853 RSWL, 2013 U.S. Dist. LEXIS 77218, at *10 (C.D. Cal. May 30, 2013)
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`(holding a page from LinkdedIn.com to be inadmissible hearsay); Tank v. Deutsche Telekom,
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`AG, No. 11 C 4619, 2013 U.S. Dist. LEXIS 56096, at *5-6 (N.D. Ill. April 19, 2013) (same);
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 8 of 12 PageID #: 2687
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`Bing Shun Li v. Holder, 400 Fed. Appx. 854, 857 (5th Cir. 2010) (finding that Wikipedia is not a
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`sufficiently reliable source to be considered) (unpublished); Lewis v. Omni Indem. Co., No. 4:11-
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`cv-0715-MGL-TER, 2013 U.S. Dist. LEXIS 110391, at *4 (D.S.C. Aug. 5, 2013) (“It is not
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`uncommon for information gathered from the internet to be unreliable”).
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`b.
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`The Invensys sources are wrong or misrepresented
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`Invensys incorrectly claims that Emerson employees participate in the selling, repairing,
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`and marketing of the accused Micro Motion Coriolis flowmeters, but none of the people
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`identified by Invensys as Emerson employees is actually employed by Emerson. Invensys
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`recognizes this when it refers to many of the people as employees of “EPM.” (E.g., Dkt. No. 92
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`at 6-7.) Invensys then simply refers to EPM as “Emerson,” as if the terms were interchangeable.
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`(See, e.g., id. at 8, 9.) As explained above, they are not.
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`Invensys acknowledges that its claim that Emerson induces infringement is based on
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`Invensys’s inference that Emerson controls the Emerson Process Experts blog. (Id. at 4-5.) That
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`inference is wrong. Jim Cahill, the blogger identified by Invensys, clearly states that his blog is
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`personal, and not run by Emerson or EPM:
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`Disclaimer
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`On a final note, the opinions expressed here are my personal
`opinions. Content published here is not read or approved by
`Emerson Process Management before it is posted and do not
`necessarily represent the views and opinions of Emerson Process
`Management.
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`(Dkt. No. 92-2 at 2.) Mr. Cahill is employed by Emerson Process Management LLLP. (Sec.
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`Davis Decl. ¶ 7.) Emerson Process Management LLLP is not Emerson; it is a separate legal
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`entity. (Id. ¶¶ 4-6.)
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`Similarly, Christopher Connor, who appears in videos related to the accused Coriolis
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`flowmeters, was the Director of Marketing and Business Development for Micro Motion, and an
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 9 of 12 PageID #: 2688
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`employee of Micro Motion. (Id. ¶ 10.) As such, the videos showing Mr. Connor are marketing
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`by Micro Motion, not Emerson.
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`B.
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`There Is No Question Of Fact – The Documents Produced Show That
`Emerson Does Not Make, Use, Offer To Sell, Sell, Import, Repair, Or Market
`The Accused Coriolis Flowmeters
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`Emerson does not make, use, offer to sell, sell, import, repair, or market the accused
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`Coriolis flowmeters – or any other Coriolis flowmeters. (Emerson Br., Dkt. No. 83 at 7; see also
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`Ledford Decl., Dkt. No. 83-8 ¶ 6.) Emerson is a corporate parent of many subsidiary companies
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`that manufacture various products. (Dkt. No. 83-8 ¶ 2.) One of those subsidiaries is Micro
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`Motion, which manufactures and sells the accused Coriolis flowmeters. (Id. ¶¶ 4, 7.) Micro
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`Motion has produced design and manufacturing documents and sales documents. As is shown
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`by the fact that Invensys did not use any of Micro Motion’s documents to support its argument
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`here, those documents do not support Invensys’s position.
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`Because Emerson does not make, use, offer to sell, sell, import, or repair the accused
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`Coriolis flowmeters, it does not have manufacturing records, sales records, invoices, importation
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`records, or repair records. Because Emerson employees do not assist Micro Motion employees
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`in sales efforts, Emerson has no records of any such activities.
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`Emerson has no documents listing the Coriolis flowmeters that it does not sell for one
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`simple reason: Emerson does not sell Coriolis flowmeters. In that regard, Emerson has no
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`development, manufacturing, sales, or revenue data to track. Emerson has submitted
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`declarations that prove this point. (Sec. Davis Decl.; Dkt. No. 83-8 (Ledford Decl.); Dkt. No.
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`83-6 (Davis Decl.) Invensys’s callous disregard of that evidence should not preclude summary
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`judgment in favor of Emerson.
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 10 of 12 PageID #: 2689
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`C.
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`Invensys’s Claim That It Needs Discovery Is Merely An Attempt To Avoid
`Summary Judgment
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`In the December 11, 2013 Frost Declaration, Invensys identified five topics on which it
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`wants discovery to respond to this motion. (Frost Decl., Dkt. No. 92-18 ¶ 3.) Invensys offers no
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`explanation why this discovery was not requested earlier or why this discovery was not served
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`with the other discovery Invensys has served on Emerson and Micro Motion. Invensys
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`acknowledged in March 2013 that it intended to take such discovery, yet it has failed to do so.
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`(Hansen Decl. ¶¶ 5-6 & Ex. D.)
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`Despite the passage of more than a year since this lawsuit was filed and Invensys was
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`told that Emerson is not a proper party to this lawsuit, (see id. ¶ 2 & Ex. A), Invensys has not
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`requested any discovery on this topic. As the Fifth Circuit Court of Appeals recognized in
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`Cormier, 969 F.2d at 1561, where a party fails to take discovery during the time available, it is
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`appropriate to grant summary judgment without permitting late requested discovery.
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`III. CONCLUSION
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`There are no genuine issues of material fact – Emerson does not make, use, offer to sell,
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`sell, market, or repair the accused Micro Motion Coriolis flowmeters. As such, this lawsuit
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`should be dismissed as against Emerson.
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 11 of 12 PageID #: 2690
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`Respectfully submitted,
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`/s/ Linda E.B. Hansen
`Linda E.B. Hansen, WI Bar No. 1000660
`Richard S. Florsheim, WI Bar No. 1015905
`Jeffrey N. Costakos, WI Bar No. 1008225
`Kadie M. Jelenchick, WI Bar No. 1056506
`Matthew J. Shin, WI Bar No. 1090096
`Foley & Lardner LLP
`777 East Wisconsin Avenue
`Milwaukee, Wisconsin 53202
`Phone: (414) 271-2400
`Fax: (414) 297-4900
`Email: lhansen@foley.com
`rflorsheim@foley.com
`jcostakos@foley.com
`kjelenchick@foley.com
`mshin@foley.com
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`Attorneys for Emerson Electric Co.
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`Dated: January 31, 2014
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`Guy N. Harrison, State Bar No. 00000077
`Harrison Law Firm
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`217 N. Center Street
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`Longview, Texas 75606
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`Phone: (903) 758-7361
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`Fax: (903) 753-9557
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`Email: guy@gnhlaw.com and
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`cj-gnharrison@att.net
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`Case 6:12-cv-00799-JRG Document 106 Filed 01/31/14 Page 12 of 12 PageID #: 2691
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`CERTIFICATE OF SERVICE
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`I hereby certify that on January 31, 2014, I electronically filed the foregoing
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`document with the Clerk of Court using the CM/ECF system which will send notification of such
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`filing via electronic mail to all counsel of record.
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`/s/ Kadie M. Jelenchick
`Kadie M. Jelenchick
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`12