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`C.A. No. 6:12-cv-799-LED
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`JURY TRIAL DEMANDED
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`§
`INVENSYS SYSTEMS, INC.,
`§
`
`
`§
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`Plaintiff,
`§
`v.
`
`§
`
`
`§
`EMERSON ELECTRIC CO. and
`§
`MICRO MOTION INC., USA,
`§
`
`
`§
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`Defendants.
`§
`and
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`§
`
`
`§
`MICRO MOTION INC., USA,
`§
`
`
`§
`
`Counterclaim-Plaintiff,
`§
`v.
`
`§
`
`
`§
`INVENSYS SYSTEMS, INC.,
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`
`
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`Counterclaim-Defendant. §
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`
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`INVENSYS SYSTEMS, INC.’S RESPONSE TO DEFENDANTS’ REQUEST FOR
`LEAVE TO FILE SUPPLEMENTAL AUTHORITY IN SUPPORT OF THEIR MOTION
`FOR LEAVE TO SUPPLEMENT INVALIDITY CONTENTIONS
`
`
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`EAST\80168686.5
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`
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`Case 6:12-cv-00799-JRG Document 215 Filed 08/21/14 Page 2 of 3 PageID #: 6227
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`Counsel for Defendants Emerson Electric Co. and Micro Motion, Inc. (collectively
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`“Defendants”) did not comply with the meet-and-confer requirements in Local Rule CV 7-(h)
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`before filing their request to file supplemental authority. In fact, Defendants’ request completely
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`omits a certificate of conference.
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`Plaintiff Invensys Systems, Inc. (“Invensys”) is not necessarily opposed to Defendants’
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`request to inform the Court that Howard Derby has been deposed, but does object to the factual
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`misstatements and additional legal arguments in Defendants’ brief. For example, as explained in
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`Invensys’s Reply in Support of Its Motion to Amend Docket Control Order, at 3, ECF No. 194,
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`because of Defendants’ late production, counsel for Invensys did not have a meaningful
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`opportunity to review any of Derby’s documents prior to the original date of his deposition (not
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`just documents relating to Defendants’ prototype). Moreover, the fact that Invensys was
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`eventually able to depose Derby does not cure the prejudice Defendants’ belated attempt to
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`amend their invalidity contentions would cause. Finally, Defendants omit perhaps the most
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`salient aspect of Derby’s testimony: Derby essentially admitted that Defendants’ prototype does
`not practice Invensys’s patented invention.1 Thus, the Derby deposition proves that allowing
`Defendants’ amendment would be futile.
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`Subject to these clarifications and corrections, Invensys is not opposed to Defendants’
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`request to supplement the record.
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`1 Specifically, the prototype cannot digitally synthesize a drive signal.
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`EAST\80168686.5
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`1
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`Case 6:12-cv-00799-JRG Document 215 Filed 08/21/14 Page 3 of 3 PageID #: 6228
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`Dated: August 21, 2014
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`
`
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`Respectfully submitted,
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`
`
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
`State Bar No. 21671300
`Jeffrey L. Johnson
`State Bar No. 24029638
`Dawn M. Jenkins
`State Bar No. 24074484
`DLA PIPER LLP
`1000 Louisiana, Suite 2800
`Houston, TX 77002
`Telephone: 713.425.8400
`Facsimile: 713.425.8401
`Claudia.Frost@dlapiper.com
`Jeffrey.Johnson@dlapiper.com
`Dawn.Jenkins@dlapiper.com
`
`Nicholas G. Papastavros
`Daniel Rosenfeld
`DLA PIPER LLP
`33 Arch Street, 26th Floor
`Boston, MA 02110
`Telephone: 617.406.6000
`Facsimile: 617.406.6100
`Nick.Papastavros@dlapiper.com
`Daniel.Rosenfeld@dlapiper.com
`
`Todd S. Patterson
`DLA PIPER LLP
`401 Congress Ave., Suite 2500
`Austin, TX 78701-3799
`Telephone: 512.457.7017
`Facsimile: 512.721.2217
`todd.patterson@dlapiper.com
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`ATTORNEYS FOR PLAINTIFF
`INVENSYS SYSTEMS, INC.
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`CERTIFICATE OF SERVICE
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`
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`The undersigned certifies that on August 21, 2014, all counsel of record who are deemed
`to have consented to electronic service are being served with a copy of this document via the
`Court’s CM/ECF system per Local Rule CV-5(a)(3). Any other counsel of record will be served
`by facsimile transmission and/or first class mail.
`
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
`
`
`
`EAST\80168686.5
`
`2