Case 6:12-cv-00799-JRG Document 216-1 Filed 08/25/14 Page 1 of 3 PageID #: 6232
`
`DLA Piper LLP (US)
`1000 Louisiana Street, Suite 2800
`Houston, Texas 77002-5005
`www.dlapiper.com
`
`Claudia Wilson Frost
`claudia.frost@dlapiper.com
`T 713.425.8450
`F 713.300.6050
`
`August 25, 2014
`
`The Honorable Leonard Davis
`U.S. District Court for the Eastern District of Texas
`200 W. Ferguson, Third Floor
`Tyler, TX 75702
`
`Re:
`
`Invensys Systems, Inc. v. Emerson Electric Co. and Micro Motion, Inc.
`Civil Action No. 6:12-cv-00799-LED
`
`Dear Judge Davis:
`
`Defendants’ motion must fail for at least two reasons. First, every product name that
`appears in Invensys’ supplemental disclosures was also expressly disclosed in its infringement
`contentions. Second, Defendants do not name a single product that falls within the supplemental
`disclosures but outside the infringement contentions—nor could they, as the disclosures do not
`enlarge the universe of accused products.
`
`I.
`
`Introduction to the Accused Products
`
`To begin, a brief introduction to the accused products will place Defendants’ motion in
`context. A Coriolis flowmeter is comprised of five primary components: 1) flowtubes through
`which the liquid and gas being measured flow, 2) two sensors that both produce a signal related
`to the liquid or gas flowing through the flowtubes, 3) a driver to impart motion to the flowtubes,
`4) at least one processor in a control system that processes the signal from the sensors, and 5) a
`transmitter that outputs the mass flow measurement in a readable format for technicians. To
`form a complete functioning Coriolis flowmeter, at least each of these components must be
`present.
`
`In its marketing materials, Micro Motion refers to the flowtubes, sensors, and driver
`components collectively as the “sensor.” Defendants sell Coriolis flowmeters in at least two
`different configurations: 1) a sensor paired with a separate or “remote” transmitter, or 2) a sensor
`paired with an attached transmitter, which Defendants term an “integrally mounted” transmitter,
`such as the 2400S and 2200S. In the “remote” sensor configuration, the processor is part of the
`“sensor,” but in the “integrally mounted” configuration, it is part of the transmitter.
`In both
`configurations, the processor is connected to the “sensor,” but in the “integrally mounted”
`configuration, the processor is already part of the transmitter that is built into the flowtube.
`Defendants also sell control systems, such as the 9739 MVD, that provide similar functionality to
`the processor components.
`Invensys has confirmed through discovery that the enhanced core
`processors, integrally mounted transmitters, and the 9739 MVD function in “exactly the same”
`manner with regard to the infringing technology and share the same source code.
`
`Defendants have attempted to hide this fact. Even though Invensys specifically identified
`the 2400S, 220S, and 9739 MVD (among others) in its infringement contentions, Defendants
`unilaterally decided that those products were not at issue and withheld discovery. Defendants
`did not disclose this position, however, and Invensys did not learn that Defendants were
`withholding information on this basis, until late in discovery. Eventually, after multiple meet
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`Case 6:12-cv-00799-JRG Document 216-1 Filed 08/25/14 Page 2 of 3 PageID #: 6233
`
`The Honorable Leonard Davis
`August 25, 2014
`Page Two
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`and confers, Defendants finally revealed that they had chosen to ignore products if their own
`internal documents did not refer to them as an “enhanced core processor” (known by the product
`code “800ecp” in Micro Motion parlance). Limiting “enhanced core processor” in this way is
`plainly unreasonable in light of the fact that: 1) Invensys expressly listed the 2400S, 2200S, and
`9739 MVD models as examples of accused products, 2) they have the same relevant
`functionality, and 3) they share the same source code. Nevertheless, Defendants’ letter brief
`repeats this familiar refrain, arguing that Invensys is not entitled to discovery on any specifically
`accused products other than the “enhanced core processor.”1 See Ltr. Br. at 2.
`II.
`Invensys Does Not Need to Amend Its Infringement Contentions
`
`Invensys does not intend to amend its infringement contentions, nor is amendment
`required by Invensys’ service of its supplemental disclosures. The initial disclosures and
`infringement contentions include an identical description of the accused products: “Coriolis
`Meters…containing a Micro Motion transmitter with a Micro Motion enhanced core
`processor…or any substantially similar component” and “components of the aforesaid Coriolis
`Meters, including, but not limited to, a Micro Motion transmitter with a Micro Motion enhanced
`core processor…or any substantially similar component.” The supplemental disclosures contain
`an updated description designed to reflect the way Defendants market their products: “Coriolis
`meters and transmitters…containing a Micro Motion enhanced core processor or similar
`instrumentality (the ‘Enhanced Transmitters’)” and “components that are part of, sold with,
`compatible with, or operate in conjunction with the Enhanced Transmitters.” This description
`does not expand the universe of accused products. Each of the exemplary transmitters
`referenced in the supplemental disclosures by model number2 also appears in Invensys’
`infringement contentions. Likewise, each of the exemplary sensor series referenced by name in
`the supplemental disclosures3 also appears in Invensys’ infringement contentions.
`Defendants make several statements about Invensys’ supplemental disclosures that
`deserve correction. First, Defendants argue that the reference to “Smart Meter Verification”
`enlarges the universe of accused products. This is incorrect. Smart Meter Verification was
`developed in conjunction with, and requires in order to function, the enhanced core processors
`(or equivalent components)
`that
`Invensys has specifically accused.
`Therefore, Coriolis
`flowmeters with Smart Meter Verification capability are already included in the infringement
`contentions.
`
`Second, Defendants claim for the first time in their letter brief that Invensys has accused
`“all products that utilize a Blackfin 533 microprocessor,” which Defendants argue is found in
`products other than the infringing Coriolis flowmeters, though they provide no examples. But
`there is no reference to the Blackfin processor in Invensys’ supplemental disclosures or in the
`Micro Motion documents it cites, so Invensys is unable to discern the basis of Defendants’
`complaint.
`In any event, a fair reading of the infringement contentions and the disclosures
`makes it apparent that Invensys is accusing only Coriolis flowmeters.
`
`1 As discussed in Invensys’ Motion to Compel, much discovery remains outstanding.
`2 Micro Motion Models 1500, 2500, 2200S, 2400S, 1700, 2700, Series 3000, 9739 MVD, FMT,
`7950, and 7951 transmitters/controllers.
`3 Micro Motion ELITE Sensors, Enhanced ELITE Sensors, F-Series sensors, H-Series sensors,
`T-Series sensors, R-Series sensors, LF-Series sensors, 7800 series sensors, and 3098 sensor.
`
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`Case 6:12-cv-00799-JRG Document 216-1 Filed 08/25/14 Page 3 of 3 PageID #: 6234
`
`The Honorable Leonard Davis
`August 25, 2014
`Page Three
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`Third, Defendants argue that Invensys accuses “sensors and transmitters that are not
`exclusively or in some instances not used at all with Micro Motion’s enhanced core processor.”
`Whether a particular Coriolis flowmeter model is used “exclusively” with an enhanced core
`processor is irrelevant. Moreover, as explained above, a product may be infringing even if it
`does not include an “enhanced core processor” as such. That is, the integrally mounted
`transmitters and the 9739 MVD provide the same relevant functionality as the “enhanced core
`processor” even if they do not contain an “800ecp.” Most importantly, each of these components
`is cited by name in Invensys’ infringement contentions, so Defendants cannot claim any unfair
`surprise.
`
`Significantly, with respect to all of their complaints, Defendants do not enumerate which
`specific Coriolis flowmeters they believe fall within the scope of the supplemental disclosures
`but outside the scope of the infringement contentions. Invensys stands on its initial infringement
`contentions; no amendment is necessary. As a result, Local Patent Rule 3-6 is inapplicable.
`
`III.
`
`Invensys Has Acted Diligently, Defendants Have Suffered No Prejudice, and the
`Requested Relief Is Inappropriate on a Motion to Strike
`
`Because Local Patent Rule 3-6 does not apply to its supplemental disclosures, Invensys
`need not show “good cause” by demonstrating diligence. Still, Invensys has acted diligently
`despite Defendants’ consistent refusal to produce discovery on all of the accused products.
`Additionally, taking depositions in the last two months of fact discovery is neither unusual nor
`improper, and it does not constitute a lack of diligence. Defendants continued to produce
`electronic documents late into the discovery period—documents that Invensys wanted to review
`prior to deposing Micro Motion or Emerson witnesses. Defendants also delayed making their
`new infringing product (introduced in 2013, after the lawsuit was filed) available for inspection.
`(Defendants refused to provide it, forcing Invensys to purchase it instead.) In short, Defendants,
`not Invensys, have been less than diligent.
`
`Defendants are well aware of the scope of the accused products through the infringement
`contentions and the frequent meet and confers on Defendants’ discovery deficiencies. Thus, they
`have suffered no prejudice and striking Invensys’ supplemental disclosures is unwarranted. To
`the extent Defendants are arguing that Invensys’ contentions (served over a year ago) should be
`limited to “sensors” with an “enhanced core processor” (as Defendants understand those terms),
`that request is untimely. It is also belied by the fact that the contentions have always expressly
`named products that Defendants do not internally designate as an “enhanced core processor.” If
`Defendants instead are arguing that the accused integrally mounted transmitters and 9739 MVD
`products do not infringe Invensys’ patents-in-suit, that issue is not properly considered on a
`motion to strike. Either way, relief from the infringement contentions cannot be granted on a
`motion to strike the supplemental disclosures.
`
`Very truly yours,
`
`/s/ Claudia Wilson Frost
`
`Claudia Wilson Frost