Case 6:12-cv-00799-JRG Document 109-1 Filed 02/12/14 Page 1 of 4 PageID #: 3304
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`Exhibit 1
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`Case 6:12-cv-00799-JRG Document 109-1 Filed 02/12/14 Page 2 of 4 PageID #: 3305
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`ATTORNEYS AT LAW
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`FOLEY & L ARDN ER LLP
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`777 EAST WISCONSIN AVENUE
`MILWAUKEE, WI 53202-5306
`414.271.2400 TEL
`414.297.4900 FAX
`foley.com
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`CLIENT/MATTER NUMBER
`087886-0122
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`February 12, 2014
`
`The Honorable Leonard Davis
`U.S. District Court for the Eastern District of Texas
`200 W. Ferguson, Third Floor
`Tyler, TX 75702
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`Invensys Systems, Inc. v. Emerson Electric Co. and Micro Motion, Inc.
`Civil Action No. 6:12-cv-00799-LED
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`Re:
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`Dear Judge Davis:
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`Defendant Emerson Electric Co. (“Emerson”) respectfully requests permission to file a
`motion to strike certain portions of Plaintiff Invensys Systems, Inc.’s Sur-reply to Emerson’s Motion
`for Summary Judgment of Non-Infringement, (Dkt. No. 108), in the above-captioned patent
`infringement case.
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`I.
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`INTRODUCTION
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`Emerson has moved for summary judgment that it does not either directly or indirectly
`infringe the Invensys patents-in-suit. (See Dkt. Nos. 83 through 83-9, 106 through 106-7.) In
`response to Emerson’s Reply filed in support of its Motion for Summary Judgment of Non-
`Infringement, (Dkt. No. 106), on February 10, 2014, Invensys Systems, Inc. (“Invensys”) filed a sur-
`reply brief. (Dkt. No. 108.) Emerson respectfully requests that Sections I and II of that sur-reply be
`stricken for two reasons:
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`1.
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`2.
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`The sur-reply contains inaccurate representations of the record; and
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`The sur-reply contains a new agency argument that could have been raised earlier by
`Invensys, but was only put forth when Emerson does not have the opportunity to
`address it.
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`Invensys relies on the misstatements in an effort to support its baseless claim that Emerson
`Process Management (“EPM”) is the same as Emerson. It is not. By way of this letter brief,
`Emerson requests permission to file a motion to strike the offending portions of Invensys’s sur-reply
`and for the Court to refuse to consider them.
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`BOSTON
`BRUSSELS
`CHICAGO
`DETROIT
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`JACKSONVILLE
`LOS ANGELES
`MADISON
`MIAMI
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`MILWAUKEE
`NEW YORK
`ORLANDO
`SACRAMENTO
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`SAN DIEGO
`SAN DIEGO/DEL MAR
`SAN FRANCISCO
`SHANGHAI
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`SILICON VALLEY
`TALLAHASSEE
`TAMPA
`TOKYO
`WASHINGTON, D.C.
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`4815-9146-0376.
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`Case 6:12-cv-00799-JRG Document 109-1 Filed 02/12/14 Page 3 of 4 PageID #: 3306
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`FOLEY & L ARDN ER LLP
`February 12, 2014
`Page 2
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`II.
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`ARGUMENT
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`A.
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`Invensys’s Sur-Reply Contains Inaccurate Representations Of The Record
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`On page 1 of its sur-reply, Invensys states: “Emerson has now unequivocally admitted that
`the EPM ‘business platform’ ‘is not a legal business entity of any type,’ but merely a division of
`Emerson.” (Id. at 1.) Neither the citations Invensys provided for this proposition – “Def.’s MSJ
`Reply at 3; see also Def.’s MSJ Ex. 8 ¶ 3” – nor the record elsewhere supports the contention that
`EPM is a “division of Emerson,” let alone that “Emerson has now unequivocally admitted” that it
`were true. EPM is not a division of Emerson.
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`In addition, Invensys improperly relies on the same authority for its misstatement at page 3,
`bullet point 2 in its sur-reply: “Emerson admits that EPM is a ‘business platform’ with no legal
`existence that serves as an organizational unit within Emerson.” Contrary to Invensys’s
`representation, EPM is not an “organizational unit within Emerson.” EPM is not a legal entity of
`any type; it has no employees. (Dkt. No. 106-1 at ¶¶ 4, 6.) EPM is simply a business platform used
`by various Emerson subsidiaries to harmonize sales, marketing, and promotional efforts. (Dkt. No.
`83-8 at ¶ 6; Dkt. No. 106-1 at ¶¶ 4-6.) Invensys has known this to be the case since at least July 16,
`2013, when Emerson submitted its letter brief relating to its request to file a motion for summary
`judgment of non-infringement. (See Dkt. No. 45-1 at 4.)  
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`B.
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`Invensys Raises A New Argument For The First Time In Its Sur-Reply
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`For the first time in its sur-reply, in direct violation of Local Rule CV-7(f), Invensys
`advances a new argument that certain activities of the so-called EPM employees and representatives
`(EPM has no employees or representatives) should be imputed to Emerson. Invensys’s newly
`minted agency argument hinges on interpreting EPM’s status to be as Invensys wrongly contends, a
`“division” and “organizational unit” of Emerson, not just a brand. There is no support in the record
`for such contentions. Moreover, it is improper for Invensys to raise this argument now, in its sur-
`reply, which should be limited to responding to issues raised in Emerson’s reply. L.R. CV-7(f); see
`also Conway v. United States, 647 F.3d 228, 237 n.8 (5th Cir. 2011); Miles Bramwell USA, LLC v.
`Weight Watchers Int’l, Inc., No. 4:12-CV-292, 2013 U.S. Dist. LEXIS 60745, at *10 (E.D. Tex.
`Mar. 27, 2013) (“Legal arguments raised for the first time in a sur-reply, like arguments raised for
`the first time in a reply, are waived.”). Because Invensys waited to advance this argument in its sur-
`reply, Emerson is now prevented from substantively rebutting it.1
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`III. CONCLUSION
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`For at least these reasons, Emerson respectfully requests permission to file a motion to strike
`Sections I and II of Invensys’s sur-reply.
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`1 Should the Court wish for briefing on this issue, Emerson would be more than happy to provide it.
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`Case 6:12-cv-00799-JRG Document 109-1 Filed 02/12/14 Page 4 of 4 PageID #: 3307
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`FOLEY & L ARDN ER LLP
`February 12, 2014
`Page 3
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`KMJ: jab
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`cc: all counsel of record (by ECF)
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`Very truly yours,
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`/s/ Kadie M. Jelenchick
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`Kadie M. Jelenchick