Case 6:12-cv-00799-JRG Document 106-6 Filed 01/31/14 Page 1 of 2 PageID #: 2706
`Case 6:12—cv—OO799—JRG Document 106-6 Filed 01/31/14 Page 1 of 2 Page|D #: 2706
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`EXHIBIT D
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`

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`Case 6:12-cv-00799-JRG Document 106-6 Filed 01/31/14 Page 2 of 2 PageID #: 2707
`Case 6:12—cv—OO799—JRG Document 106-6 Filed 01/31/14 Page 2 of 2 PagelD #: 2707
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`Hansen, Linda E.B.
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`
`Richart, Chris <Chris.Richart@dlapiper.com>
`Friday, March 29, 2013 4:04 PM
`Hansen, Linda E.B.
`Frost, Claudia; Papastavros, Nick
`lnvensys v. Micro Motion — Claim Against Emerson
`
`Linda, Nick asked that I send the following to you on his behalf:
`
`Linda,
`
`lnvensys is not required to prove that Emerson is involved in the selection, design, or development of the
`accused Coriolis flowmeters to prevail on its claims of patent infringement against Emerson—as you know, the
`patent infringement statute is significantly broader than that. Put another way, even assuming the truth of
`the facts alleged in your e—mail, Emerson would not be entitled to summary judgment.
`
`In addition, while your affiants may state that Emerson does not sell Coriolis flowrneters, as you know we have
`previously furnished publicly available information (including materials from Emerson’s own website)
`indicating that Emerson is actively involved in the sale of the accused products and is liable as a direct or
`indirect infringer. See my December 21, 2012 e-mail.
`I can only assume that our furnishing only a portion of
`the publicly available information deterred Emerson from filing a Rule 12 Motion in January, and lnvensys is
`clearly entitled to discovery now given that its pre-filing investigation clearly substantiated its claims against
`Emerson.
`lnvensys has fully complied with Rule 11 and is entitled to discovery, including an opportunity to
`cross-examine Emerson’s affiants-indeed Fed. R. Civ. P. 56(d) is squarely on point in circumstances like
`these. See Moody v. Aqua Leisure lnt'l, Civ. No. H-10-1961, 2012 WL 1015955, at *2-4 (S.D. Tex. Mar. 22,
`2012) (granting a Rule 56(d) motion because the court had not issued its claim construction ruling, discovery
`was still in the early stages, and no depositions had been taken}; see also Manchok v. Rollins Envt'l'$ervs., inc,
`No. 96-37 (SLR), 1996 WL 790100, at *4 (D. Del. Dec. 18, 1996) (denying as premature a pre-discovery
`summary judgment motion claiming that the defendant was merely a holding company and did not engage in
`any infringing activity].
`If you have any authority to support your conclusory allegations at this preliminary
`stage ofthe litigation, I would be more than willing to consider it. Otherwise, I’m left no alternative but to
`conclude that your threat to file a pre-discovery summaryjudgment motion, especially one seeking costs, is
`inappropriate and legally unsupported.
`
`Sincerely,