Case 6:12-cv-00799-JRG Document 128-1 Filed 03/11/14 Page 1 of 3 PageID #: 3985
`Case 6:12—cv—00799—JRG Document 128-1 Filed 03/11/14 Page 1 of 3 Page|D #: 3985
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`EXHIBIT 1
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`EXHIBIT 1 
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`Case 6:12-cv-00799-JRG Document 128-1 Filed 03/11/14 Page 2 of 3 PageID #: 3986
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`ATTORNEYS AT LAW
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`FOLEY & L ARDN ER LLP
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`
`MARCH 10, 2014
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`777 EAST WISCONSIN AVENUE
`MILWAUKEE, WI 53202-5306
`414.271.2400 TEL
`414.297.4900 FAX
`foley.com
`
`CLIENT/MATTER NUMBER
`087886-0122
`
`The Honorable Leonard Davis
`U.S. District Court for the Eastern District of Texas
`200 W. Ferguson, Third Floor
`Tyler, TX 75702
`
`Invensys Systems, Inc. v. Emerson Electric Co. and Micro Motion, Inc.
`Civil Action No. 6:12-cv-00799-LED
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`
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`Re:
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`Dear Judge Davis:
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`For the reasons stated in Emerson’s letter brief (Dkt. No. 109-1) regarding its motion to
`strike certain portions of Invensys’s Sur-reply to Emerson’s Motion for Summary Judgment of Non-
`Infringement (Dkt. 108, hereinafter “Sur-reply”), and for the additional reasons stated below,
`Sections I and II of that Sur-reply should be stricken.
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`I.
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`Invensys’s Sur-Reply Contains Inaccurate Representations of the Record.
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`The record evidence states: “EPM is a business platform (a brand) used by various Emerson
`subsidiaries.” (Dkt. No. 106 at 3 (citing references).) “EPM is not a legal business entity of any
`type.” (Id.) “[EPM] is simply a platform name used to identify various Emerson subsidiaries that
`are in the process management business.” (Id.)
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`In its Sur-reply, Invensys takes an unjustified leap and contends that these statements
`constitute an admission by Emerson that EPM is “a division of Emerson.” (Dkt. No. 108 at 1.)
`None of the citations provided by Invensys support its proposition. In its answering letter brief,
`Invensys implicitly concedes the lack of evidence that EPM is a “division” of Emerson when it
`argues that its own definition of division “necessarily” justifies that position. (Dkt. No. 116-1 at 2
`(“EPM is necessarily a division of Emerson (since a division is, by definition, an unincorporated
`administrative or organizational structure within a larger business entity.”).) Nothing supports
`Invensys’s claim, as EPM is not an administrative or organizational structure within Emerson.
`Rather, the record reflects that Emerson owns a number of subsidiaries. (Dkt. No. 106-1 at ¶¶ 4-6.)
`It uses the name EPM as a way to refer to those subsidiaries that sell products that manage
`manufacturing processes. EPM is a brand name, and has no employees. (Id.) Invensys should
`simply not be able to argue that EPM is a “division” when the record evidence states that EPM is a
`business platform or brand used by various Emerson subsidiaries. Invensys’s characterization of the
`record is inaccurate and should be stricken from Invensys’s briefing.
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`II.
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`Emerson Did Not Raise New Issues In Its Letter Brief.
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`Invensys incorrectly contends that its Sur-reply did not contain any new arguments except for
`those needed to respond to the allegedly new evidence and arguments raised in Emerson’s Reply
`brief. (Dkt. No. 116-1 at 3.) However, Invensys’s Sur-reply brief argues, for the first time, that
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`4820-5676-0089.
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`Case 6:12-cv-00799-JRG Document 128-1 Filed 03/11/14 Page 3 of 3 PageID #: 3987
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`FOLEY & L ARDN ER LLP
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`March 10, 2014
`Page 2
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`certain activities of the so-called EPM employees and representatives should be imputed to Emerson
`by virtue of EPM’s status as a “division” and “organizational unit” of Emerson. Invensys has not
`denied that it could have made this argument much earlier. In fact, it could have made this argument
`at least as early as its response brief in opposition to Emerson’s motion for summary judgment.
`Waiting to raise the argument until the Sur-reply is too late as it improperly prevents Emerson from
`responding.
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`III. The Remainder of Invensys’s Answering Letter Brief is Unproductive Posturing and, in
`any Event, it was Not Timely Filed.
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`The remainder of Invensys’s answering letter brief constitutes attempts to shift blame onto
`Emerson. Emerson will not respond to such posturing other than to say that it is not productive and
`a waste of judicial resources.
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`Last, this Court’s Standing Order Regarding Letter Briefs states that answering letter briefs
`shall be “filed with the Court no later than 14 days” after the opening letter brief is filed. Thus,
`Invensys’s answering brief should have been filed by February 26, 2014, which was 14 days after
`the February 12 filing of Emerson’s opening letter brief. Instead, Invensys filed its answering letter
`brief on March 3, 2014,1 at least five days late, and in violation of the Standing Order.2 (See Dkt.
`Nos. 115-1 & 116-1.) Accordingly, Invensys’s answering letter brief should be disregarded as
`untimely filed.
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`Very truly yours,
`
`/s/ Kadie M. Jelenchick
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`Kadie M. Jelenchick
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`cc: all counsel of record (by ECF)
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`1 Invensys was ordered to re-file its opposition letter brief on March 4, 2014 to comply with
`Court’s filing rules.
`2 Local Rule CV-6(a) does not give Invensys three additional days to its deadline because
`Rule CV-6(a) “applies only to responses due within a certain time after ‘service’ of a preceding
`document,” and the Court’s letter brief deadlines are not triggered off of “service.”