Case 6:12-cv-00799-JRG Document 208-1 Filed 08/07/14 Page 1 of 4 PageID #: 6044
`Case 6:l2—cv—00799—JRG Document 208-1 Filed 08/07/14 Page 1 of 4 Page|D #: 6044
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`EXHIBIT 1
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`EXHIBIT 1 
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`Case 6:12-cv-00799-JRG Document 208-1 Filed 08/07/14 Page 2 of 4 PageID #: 6045
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`ATTORNEYS AT LAW
`
`FOLEY & L ARDN ER LLP
`
`
`777 EAST WISCONSIN AVENUE
`MILWAUKEE, WI 53202-5306
`414.271.2400 TEL
`414.297.4900 FAX
`foley.com
`
`CLIENT/MATTER NUMBER
`087886-0122
`
`August 7, 2014
`
`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
`
`
`
`Re:
`
`
`Dear Judge Davis:
`
`
`Micro Motion and Emerson respectfully request permission to file a motion to strike Plaintiff
`Invensys’s July 12, 2014 “Supplemental Disclosures,” which improperly seek to broaden the
`universe of accused products under the auspices of a Rule 26 supplement. Served just days before
`the close of fact discovery, Invensys’s Rule 26(a) supplement expands upon its original P.R. 3-1
`infringement contentions’ definition of accused products—Micro Motion Coriolis flowmeters with
`an enhanced core processor—to include allegations of infringement drawn to wholly different
`functionalities, including all Micro Motion products with “Smart Meter Verification,” which is a
`diagnostic tool that evaluates the functional integrity and performance of a flowmeter. In addition,
`Invensys’s supplement now alleges for the first time that any product that utilizes a Blackfin 533
`microprocessor is infringing. The Blackfin 533 microprocessor is used in many Micro Motion
`products that do not utilize an enhanced core processor.
`
`Invensys has not complied with P.R. 3-6’s requirement for leave of Court to amend
`infringement contentions. Invensys should not be permitted to circumvent the local patent rules by
`improperly amending its contentions using Rule 26(a) disclosures. Accordingly, Micro Motion and
`Emerson seek a Court order striking Invensys’s supplemental disclosures. In addition, Micro Motion
`and Emerson seek to preclude Invensys from seeking leave to amend its infringement contentions for
`lack of good cause to do so.
`
`I.
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`INVENSYS’S SHIFTING DEFINITION OF ACCUSED PRODUCTS
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`On July 15, 2013, Invensys served its P.R. 3-1 Disclosure of Asserted Claims and
`Infringement Contentions in which Invensys accused the following Micro Motion products:
`
`(i) Coriolis Meters (e.g., Micro Motion® Elite® Coriolis Meters) containing a Micro
`Motion transmitter with a Micro Motion enhanced core processor (e.g., Micro Motion
`Model 2400S, 1700, 2700, Series 3000, and 9739 transmitters) or any substantially
`similar component, and/or (ii) components of the aforesaid Coriolis Meters, including,
`but not limited to, a Micro Motion transmitter with a Micro Motion enhanced core
`processor (e.g., Micro Motion Model 2400S, 1700, 2700, Series 3000, and 9739
`transmitters) or any substantially similar component.
`
`
`BOSTON
`BRUSSELS
`CHICAGO
`DETROIT
`
`JACKSONVILLE
`LOS ANGELES
`MADISON
`MIAMI
`
`MILWAUKEE
`NEW YORK
`ORLANDO
`SACRAMENTO
`
`SAN DIEGO
`SAN DIEGO/DEL MAR
`SAN FRANCISCO
`SHANGHAI
`
`SILICON VALLEY
`TALLAHASSEE
`TAMPA
`TOKYO
`WASHINGTON, D.C.
`
`
`4833-6382-8508.
`
`

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`Case 6:12-cv-00799-JRG Document 208-1 Filed 08/07/14 Page 3 of 4 PageID #: 6046
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`FOLEY & L ARDN ER LLP
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`August 7, 2014
`Page 2
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`As Micro Motion’s Rick Maginnis has testified, Micro Motion’s Model 1500, 1700, 2500,
`and 2700 transmitters and Model 3500 and 3700 transmitter/controllers are the only products
`interoperable with the Micro Motion enhanced core processor, information that was initially
`provided in Micro Motion’s interrogatory responses.
`
`Instead of amending its infringement contentions to specifically identify these products,
`nearly one year later and just days before the close of fact discovery on July 16, 2014, on July 12,
`2014, Invensys supplemented its Rule 26(a) disclosures, greatly expanding the number of Micro
`Motion products that Invensys now accuses of infringement, as follows:
`
`(a) Coriolis meters and transmitters (e.g., sensor/transmitter/controller combinations
`comprised of Micro Motion Elite Coriolis Meters or Sensors, or other similar components
`or combinations) containing a Micro Motion enhanced core processor or similar
`instrumentality (the “Enhanced Transmitters”). An instrumentality is similar if, for
`example, it is similar to an enhanced core processor in terms of how measurements are
`generated, how the drive signal is generated or controlled, or how the oscillation of the
`flowtubes, sensors, or driver is controlled; if it uses the same microprocessor included in
`the enhanced core processor; if it employs “Smart Meter Verification”; or if it was
`designed, changed, or modified as part of the project described in MM072488-702,
`including those mentioned on MM0728502 and MM078534-35, and those mentioned on
`MM0729272-94. Representative infringing products include Micro Motion Model 1500,
`2500, 2200S, 2400S, 1700, 2700, Series 3000, 9739 MVD, FMT, 7950, and 7951
`transmitters/controllers; and
`
`(b) Components that are part of, sold with, compatible with, or operate in conjunction
`with the Enhanced Transmitters, including but not limited to, ELITE Sensors, Enhanced
`ELITE Sensors, sensors carrying a CMF or CMFS designation, F-Series sensors, H-
`Series sensors, T-Series sensors, R-Series sensors, LF-Series sensors, 7800 series sensor,
`3098 sensor, and any sensor capable of measuring mass flow rate; and any substantially
`similar component (collectively with the Enhanced Transmitters, the “Accused
`Products”).1
`
`In addition to Coriolis flowmeters with enhanced core processors, Invensys’s Rule 26(a)
`disclosures now accuse (1) Micro Motion’s Coriolis flowmeters’ Smart Meter Verification
`capability; (2) all products that utilize a Blackfin 533 microprocessor, which is not a microprocessor
`that is exclusively used by Micro Motion or Coriolis flowmeters; and (3) sensors and transmitters
`that are not exclusively or in some instances not used at all with Micro Motion’s enhanced core
`processor.
`
`
`1 Invensys’s definition of accused products is constantly shifting. For example, on July 29, 2013,
`Invensys served its initial Rule 26(a) disclosures, which included a narrower definition. In its June
`27, 2014 motion to compel, an even broader definition. (See Dkt. No. 167 at 10 n.15.)
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`

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`Case 6:12-cv-00799-JRG Document 208-1 Filed 08/07/14 Page 4 of 4 PageID #: 6047
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`FOLEY & L ARDN ER LLP
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`August 7, 2014
`Page 3
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`Invensys has never supplemented its P.R. 3-1 infringement contentions; nor did Invensys
`ever seek leave from the Court to do so, which would have required a showing of good cause. P.R.
`3-6(b). However, Invensys appears to contend that the accused Micro Motion products in this case
`are those outlined in its supplement Rule 26(a) disclosures and suggests that leave to amend its
`contentions is not required. (See Dkt. No. 193 at 4 n.6.) Invensys is wrong.
`
`II.
`
`INVENSYS FAILED TO COMPLY WITH P.R. 3-6
`
`Under P.R. 3-6(b), a party must obtain the Court’s leave with a showing of good cause to
`amend or supplement its P.R. 3-1 infringement contentions. See Alt v. Medtronic, Inc., No. 2:04-CV-
`370, 2006 U.S. Dist. LEXIS 4435, at *4-5 (E.D. Tex. Feb. 1, 2006). Invensys cannot dispute that it
`has not sought the Court’s leave. Rather, Invensys has attempted to circumvent the good cause
`requirement by using its Rule 26(a) disclosures to amend its infringement contentions.2 This is
`inconsistent with the local patent rules, which are designed specifically to prevent such a “shifting
`sands” approach to framing one’s patent infringement case. See Softvault Sys. v. Microsoft Corp.,
`No. 2:06-CV-16, 2007 U.S. Dist. LEXIS 33060, at *6 (E.D. Tex. May 4, 2007).
`
`III.
`
`INVENSYS CANNOT DEMONSTRATE GOOD CAUSE
`
`Invensys did not act diligently in providing its revised (and greatly expanded) infringement
`contentions, and Emerson and Micro Motion are unfairly prejudiced by the eleventh hour
`supplementation. Invensys served its Rule 26(a) supplemental disclosures less than five days before
`the close of fact discovery, precluding Defendants from seeking discovery and exploring Invensys’s
`newly-minted infringement allegations. Further, Invensys’s lack of diligence in defining the accused
`products is its own fault—Invensys waited until less than two months before the close of fact
`discovery to even begin taking substantive depositions of Micro Motion employees, and waited until
`the final days of fact discovery to order Micro Motion products to reverse engineer, even though this
`lawsuit was filed in 2012, and Invensys’s documents show that it contemplated litigation against
`Micro Motion many years before that. Under these circumstances, Invensys cannot show good cause
`and should therefore be precluded from amending its infringement contentions to expand the number
`of Micro Motion products it accuses of infringement.
`
`KMJ: jab
`cc: all counsel of record (by ECF)
`
`
`Very truly yours,
`
`/s/ Kadie M. Jelenchick
`
`
`2 Among other things, P.R. 3-1 infringement contentions require a party to identify “separately for
`each asserted claim, each accused apparatus, product, device, etc.” P.R. 3-1(b). Infringement
`contentions must also include a “chart identifying specifically where each element of each asserted
`claim is found.” P.R. 3-1(c). Invensys’s supplemental identification of accused products in its Rule
`26(a) disclosures is an end-around these requirements.