Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 1 of 15 PageID #: 1939
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`IN THE UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`INVENSYS SYSTEMS, INC.,
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`Plaintiff,
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`vs.
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`Case No. 12-CV-00799-LED
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`
`and
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`MICRO MOTION INC, USA,
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`Defendants,
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`Counterclaim-Plaintiff,
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`INVENSYS SYSTEMS, INC.,
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`
`vs.
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`Counterclaim-Defendant
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`
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`MICRO MOTION, INC.’S OPPOSITION TO INVENSYS SYSTEMS, INC.’S
`MOTION TO DISMISS AND STRIKE MICRO MOTION’S COUNTERCLAIM AND
`AFFIRMATIVE DEFENSE OF INEQUITABLE CONDUCT
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 2 of 15 PageID #: 1940
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1 
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`RELEVANT FACTS .......................................................................................................... 2 
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`I. 
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`II. 
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`III.  MICRO MOTION’S CHALLENGED INEQUITABLE CONDUCT
`COUNTERCLAIM AND AFFIRMATIVE DEFENSE ARE PROPERLY
`STATED AND PLED......................................................................................................... 4 
`A. 
`Micro Motion Satisfies the “Who” Requirement.................................................... 5 
`B. 
`Micro Motion Satisfies the “What,” “When,” and “Where” Requirements ........... 7 
`C. 
`Micro Motion Satisfies the “How” Requirement.................................................... 7 
`D. 
`Under the Circumstances, There Is a Reasonable Inference of Intent .................... 9 
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`CONCLUSION ................................................................................................................. 11 
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`IV. 
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`ii
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 3 of 15 PageID #: 1941
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
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`Acquis LLC v. Appro Intern., Inc.,
`No. 6:09-cv-148-LED, 2010 WL 3155259 (E.D. Tex. July 22, 2010) ......................................7
`
`Bruno Indep. Living Aids, Inc. v. Acorn Mobility Servs., Ltd.,
`394 F.3d 1348 (Fed. Cir. 2005)..................................................................................................9
`
`Cal. Instit. of Tech. v. Canon U.S.A.,
`No. 2:08-cv-08637-MRP-VBK, 2009 U.S. Dist. LEXIS 126174 (C.D. Cal.
`Oct. 26, 2009) ............................................................................................................................6
`
`Exergen Corp. v. Wal-Mart Stores, Inc.,
`575 F.3d 1312 (Fed. Cir. 2009)................................................................1, 2, 4, 5, 6, 7, 8, 9, 11
`
`Intellect Wireless, Inc. v. HTC Corp.,
`No. 2012-1658, 2013 U.S. App. Lexis 20529 (Fed. Cir. Oct. 9, 2013) .....................................9
`
`Konami Digital Entm’t Co. v. Harmoniz Music Sys., Inc.,
`No. 6:08-cv-286-JDL, 2009 U.S. Dist. LEXIS 117468 (E.D. Tex. Dec. 14,
`2009) ..........................................................................................................................................7
`
`MacLean-Fogg Co. v. Eaton Corp.,
`No. 2:07-cv-472, U.S. Dist. LEXIS 28150 (E.D. Tex. Apr. 7, 2008)........................................4
`
`New Railhead Mfg., L.L.C. v. Vermeer Mfg.,
`298 F.3d 1290 (Fed. Cir. 2002)................................................................................................10
`
`In re Rockefeller Ctr. Props., Inc. Sec. Litig.,
`311 F.3d 198 (3d Cir. 2002).......................................................................................................6
`
`Therasense v. Becton, Dickinson & Co.,
`649 F.3d 1276 (Fed. Cir. 2011) (en banc) .............................................................................8, 9
`
`Statutes
`
`35 U.S.C. § 112 ..............................................................................................................................10
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`Other Authorities
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`Fed. R. Civ. P. 9(b) ................................................................................................................1, 4, 11
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 4 of 15 PageID #: 1942
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`I.
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`INTRODUCTION
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`Micro Motion, Inc.’s (“Micro Motion”) inequitable conduct allegations fully
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`satisfy the heightened pleading requirements of Fed. R. Civ. P. 9(b). The Exergen case1 and its
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`progeny that Invensys Systems, Inc. (“Invensys”) relies upon are readily distinguishable. Unlike
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`these cases, Micro Motion’s inequitable conduct pleadings sufficiently identify the “who, what,
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`when, where, and how” of Invensys’s material misrepresentations made in connection with the
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`prosecution of U.S. Patent No. 7,124,646 (“the ’646 patent”) and provides a reasonable basis to
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`infer an intent to deceive. At this preliminary stage of the litigation, Invensys’s Motion should
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`be denied, and Micro Motion’s inequitable conduct counterclaim and affirmative defense should
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`stand.2
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`Invensys’s inequitable conduct stems from the conflicting statements made in
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`U.S. Provisional Application No. 60/166,742 (“the ’742 provisional”) and non-provisional U.S.
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`Patent Application No. 09/716,644 (“the ’644 application”), to both of which the ’646 patent
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`1 Exergen Corp. v. Wal-Mart Stores, Inc., 575 F.3d 1312 (Fed. Cir. 2009).
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`2 Micro Motion withdraws its “infectious unenforceability” claim detailed in Paragraphs
`73 and 95-96 of the Affirmative Defenses and Paragraphs 37-38 of the Amended Counterclaims,
`subject to its reservation of rights to amend its pleading to renew these allegations at the
`appropriate time. (See Dkt. No. 69 (permitting amendment of the pleadings through February
`14, 2014).) Invensys was aware of this withdrawal prior to its filing of the present Motion.
`(Declaration of Kadie M. Jelenchick (“Jelenchick Decl.”), Ex. D.) Nevertheless, Invensys
`attacks Micro Motion for these allegations and burdened the Court with three pages of argument
`on this issue, citing an inability to revise its brief at such a “late stage.” (Jelenchick Decl., Ex.
`E.) Complaining that it was Micro Motion that was to blame is disingenuous. Micro Motion
`only learned the details of Invensys’s perceived objections to its inequitable conduct pleadings
`the day before Invensys filed this Motion. Invensys had ample time to raise this issue sooner, as
`it sought an extension to its deadline to answer or otherwise respond to Micro Motion’s Second
`Amended Counterclaims. (Jelenchick Decl., Ex. F.) During the parties’ discussion and Micro
`Motion’s agreement to the extension, Invensys never raised any issue with Micro Motion’s
`pleading. (Id.)
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`1
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 5 of 15 PageID #: 1943
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`purports to claim priority. More specifically, the ’742 provisional provides that the Coriolis
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`flowmeter Invensys disclosed was not capable of repeating its claimed measuring functionality in
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`all industrial settings. Just shy of a year later, in the ’644 application, Invensys completely flip-
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`flopped and guaranteed that the Coriolis flowmeter’s measuring functionality could be achieved
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`and repeated in all industrial settings. There was no new content in the specification to
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`substantiate such a change. But, with this revised language, the broad ’646 patent claims that
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`purport to cover the Coriolis flowmeter’s measuring functionality in all industrial settings now
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`also purport to have specification support. Based on the evidence thus far made available to
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`Micro Motion, there was no legitimate reason to justify the language reversal. Consistent with
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`Exergen, the facts and circumstances, as pled, plausibly suggest that there was a deliberate
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`decision to make a knowingly false misrepresentation. This is sufficient to withstand Invensys’s
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`Motion to Dismiss; Micro Motion need not prove up its inequitable conduct case at this juncture.
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`II.
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`RELEVANT FACTS
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`Micro Motion’s inequitable conduct allegations focus on one of the seven
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`Invensys patents being asserted in this litigation – the ’646 patent. The ’646 patent was filed on
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`August 22, 2005.
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`The ’646 patent claims a method or controller for a “Coriolis effect flowmeter”
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`that, among other things, “determine[s], based on the sensor signal, the flow rate of the flowing
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`liquid during a transition of the flowtube from a first state in which the flowtube is substantially
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`empty of the flowing liquid to a second state in which the flowtube is substantially full of the
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`flowing liquid.” Despite the fact that the data relied upon only comes from controlled laboratory
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`experiments, the ’646 patent purports to claim that this measurement capability can be done and
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`repeated in all industrial settings. Specifically, the ’646 patent specification states that “[s]imilar
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 6 of 15 PageID #: 1944
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`repeatability could be achieved in an arbitrary industrial batch process.” (Jelenchick Decl., Ex.
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`A at Col. 57, Ln. 39-40.) This is the only statement in the ’646 patent that supports the
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`contention that the claimed method or controller can be used in a variety of real-world industrial
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`batch processes.
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`The ’646 patent claims priority to the ’644 application, which was filed on
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`November 21, 2000. (Jelenchick Decl., Ex. A at 1.) The specification of the ’644 application
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`includes a similar statement touting the Coriolis effect flowmeter’s measuring functionality:
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`“Thus, it can be guaranteed that similar repeatability could be achieved in an arbitrary
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`industrial batch process.” (Jelenchick Decl., Ex. B at 103 (emphasis added).)
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`The ’644 application claims priority to the ’742 provisional, which was filed
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`nearly a year earlier, on November 22, 1999. (Jelenchick Decl., Ex. B at 7.) The ’646 patent
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`also points to the ’742 provisional for its priority claim. Significantly, and relevant to this
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`Motion and Micro Motion’s inequitable conduct pleadings, the ’742 provisional completely
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`contradicts the ’646 patent’s and the ’644 application’s statements that the Coriolis effect
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`flowmeter’s functionality is repeatable in a range of industrial processes. The ’742 provisional
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`states that “it cannot be guaranteed that similar repeatability could be achieved in an arbitrary
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`industrial process.” (Jelenchick Decl., Ex. C at 3 (emphasis added).) It is this irreconcilable
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`inconsistency that is at the heart of Micro Motion’s inequitable conduct claim.
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`Invensys initiated this litigation more than a year ago. (See Dkt. No. 1.) Nearly
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`ten months later, the Court entered the case schedule, which has been twice amended to account
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`for Invensys’s requests for extensions to certain deadlines. (See Dkt. Nos. 58, 64, 69.) Under
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`the governing Second Amended Docket Control Order, which was entered on September 3,
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`2013, the Court required any inequitable conduct claims to be raised by September 13, 2013.
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`4838-6019-0230.2
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 7 of 15 PageID #: 1945
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`(See Dkt. No. 69.) Following the Court’s Order and adhering to the schedule in this case, Micro
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`Motion amended its affirmative defenses and counterclaims to assert that the ’646 patent is
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`unenforceable as a result of inequitable conduct stemming from what appears to be a material
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`misrepresentation regarding the proper scope of the ’646 patent claims. (See Dkt. No. 71.)
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`Micro Motion’s inequitable conduct pleadings were necessarily limited by the fact that discovery
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`has only just begun, and Invensys has neither produced all of its relevant documents nor
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`provided meaningful interrogatory responses. The Court-ordered deadline for amending
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`pleadings is more than three months away on February 14, 2014. (See Dkt. No. 69.)
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`III. MICRO MOTION’S
`CONDUCT
`INEQUITABLE
`CHALLENGED
`COUNTERCLAIM AND AFFIRMATIVE DEFENSE ARE PROPERLY STATED
`AND PLED
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`Micro Motion acknowledges that claims of inequitable conduct must be pled with
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`particularity under Rule 9(b). See Exergen, 575 F.3d at 1326. As this Court has recognized,
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`“[t]he degree of particularity required is that which will give the opposing party sufficient notice
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`to prepare an appropriate response.” MacLean-Fogg Co. v. Eaton Corp., No. 2:07-cv-472, U.S.
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`Dist. LEXIS 28150, at *3-4 (E.D. Tex. Apr. 7, 2008) (citation omitted) (denying motion to strike
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`defendant’s inequitable conduct allegations).
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`The substantive elements of a claim based on inequitable conduct are: (1) an
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`individual associated with the filing and prosecution of a patent application made an affirmative
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`misrepresentation of a material fact, failed to disclose material information, or submitted false
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`material information; and (2) the individual did so with a specific intent to deceive the PTO.
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`Exergen, 575 F.3d at 1327 n.3. The “circumstances” that must be plead with particularity under
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`Rule 9(b) are “the specific who, what, when, where, and how of the material misrepresentation
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`4838-6019-0230.2
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 8 of 15 PageID #: 1946
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`or omission committed before the PTO.” Id. at 1328. Invensys’s Motion does not credibly
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`contest that Micro Motion failed to satisfy any of these particular requirements.
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`The challenged inequitable conduct allegations do specifically identify the who,
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`what, when, where, and how, as required for pleading inequitable conduct.
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`A. Micro Motion Satisfies the “Who” Requirement
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`An inequitable conduct pleading must identify specific individuals who owed a
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`duty of candor to the PTO and breached that duty. See Exergen, 574 F.3d at 1329. A plain
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`reading of Micro Motion’s pleadings does just that. Micro Motion’s allegations clearly provide
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`that the relevant “who” is the “author of the ’644 [application’s] specification,” as he or she
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`attempted to generalize the purported invention of the ’646 patent in a way that was inconsistent
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`with the ’742 provisonal. (Dkt. No. 71 at 18, ¶ 90 and 23, ¶ 32.)
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`At this stage in the litigation, Micro Motion does not have the specific name or
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`names of who was responsible for the preparation of the relevant portion of the ’644
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`application’s specification. This is not for lack of trying to uncover this information. Micro
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`Motion, through certain of its interrogatories served on Invensys, has attempted to take discovery
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`on this exact point. (Jelenchick Decl., Ex. H.) For example, in Interrogatory No. 1, Micro
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`Motion sought an identification and description of “the first written description of each claimed
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`invention (including when and where it was made and by whom).” (Id. at 7.) In Interrogatory
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`No. 4, Micro Motion sought an “[i]dentif[ication of] each person who was associated with
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`preparing, filing, or prosecuting the Invensys Patents-in-Suit, and describe in detail the nature of
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`each person’s involvement.” (Id. at 8.) Additional discovery will only further substantiate
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`Micro Motion’s inequitable conduct case.
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 9 of 15 PageID #: 1947
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`Invensys failed to respond to these interrogatories in any meaningful way. With
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`respect to Interrogatory No. 1, Invensys lodged form objections and otherwise referred Micro
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`Motion to its P. R. 3-2 production, which totaled more than 2,400 pages of documents. (See
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`Jelenchick Decl., Ex. I at 5.) Review of these documents has not provided any information
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`regarding the “who”, “when”, and “where” associated with the written description of the ’646
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`patent. With respect to Interrogatory No. 4, Invensys failed to answer the request in its entirety,
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`providing information only about who prosecuted the Invensys patents. (Id. at 7-8.) This
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`information is uniquely in the possession of Invensys and not protected by any credible claim of
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`privilege. Invensys cannot seek to punish Micro Motion for failing to identify the ’644
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`application’s author by name when it is Invensys who has failed to respond to discovery on this
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`issue.
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`Micro Motion’s factual allegations regarding the “who” of inequitable conduct are
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`not boilerplate charges of patent unenforceability, and therefore, satisfy the “who” requirement
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`under Exergen. See, e.g., Cal. Instit. of Tech. v. Canon U.S.A., No. 2:08-cv-08637-MRP-VBK,
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`2009 U.S. Dist. LEXIS 126174, at *9 (C.D. Cal. Oct. 26, 2009) (“Although [plaintiff’s] pleading
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`does not specifically name the individuals alleged to have committed inequitable conduct, it does
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`allege material misrepresentations and omissions sufficient at the pleading stage.”); In re
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`Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir. 2002) (relaxing “who”
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`requirement if a party uses an “alternative means of injecting precision and some measure of
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`substantiation into their allegations of fraud”). Here, Micro Motion’s allegations are more than
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`sufficient to put Invensys on notice regarding the “who” aspect of its counterclaim and
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`affirmative defense.
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`4838-6019-0230.2
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 10 of 15 PageID #: 1948
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`B. Micro Motion Satisfies the “What,” “When,”3 and “Where” Requirements
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`Micro Motion has also satisfied the “what” and “where” pleading requirements as
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`stated by Exergen, which require an identification of which claims and which limitations in those
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`claims are impacted by the misrepresentation. Exergen, 575 F.3d at 1329. Again, a plain
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`reading of Micro Motion’s inequitable conduct allegations makes clear which claims and which
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`limitations in those claims were affected by Invensys’s misstatements.
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`Micro Motion unequivocally identifies the independent claims of the ’646 patent.
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`(Dkt. No. 71 at 17, ¶ 86 and 23, ¶ 28.) The three independent claims of the ’646 patent each
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`contain the relevant limitation, (Jelenchick Decl., Ex. A at cls. 1, 10, 11), which Micro Motion
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`also unequivocally identified: “determine [determining], based on the sensor signal, the flow
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`rate of the flowing liquid during a transition of the flowtube from a first state in which the
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`flowtube is substantially empty of the flowing liquid to a second state in which the flowtube is
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`substantially full of the flowing liquid.” (Dkt. No. 71 at 16, ¶ 75 and 21-22, ¶ 17.) This is
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`exactly in line with the requirements discussed in the Konami and Acquis cases that Invensys
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`relies upon. See Konami Digital Entm’t Co. v. Harmoniz Music Sys., Inc., No. 6:08-cv-286-JDL,
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`2009 U.S. Dist. LEXIS 117468, at *7 (E.D. Tex. Dec. 14, 2009); Acquis LLC v. Appro Intern.,
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`Inc., No. 6:09-cv-148-LED, 2010 WL 3155259, at *1 (E.D. Tex. July 22, 2010).
`
`C. Micro Motion Satisfies the “How” Requirement
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`Micro Motion has also fulfilled the “how” requirement, which requires that the
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`pleading explain why the information is material and how an examiner would have used the
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`3 Invensys does not challenge Micro Motion’s satisfaction of the “when” requirement.
`There is no question as to “when” the inequitable conduct occurred – during prosecution of the
`’646 patent and the applications it claims priority to.
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`4838-6019-0230.2
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`7
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 11 of 15 PageID #: 1949
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`information in assessing the patentability of the claims. See Exergen, 575 F.3d at 1330. There is
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`a distinction between alleging why information is material, which Exergen requires, and proving
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`it is material, which Invensys seems to suggest is required. The court in Therasense changed the
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`definition of materiality from the “reasonable examiner” standard to “but-for” materiality, but it
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`did not change the pleading requirements under Exergen. See Therasense v. Becton, Dickinson
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`& Co., 649 F.3d 1276, 1291 (Fed. Cir. 2011) (en banc).
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`The ’646 patent generalizes Invensys’s alleged invention in a way that is directly
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`contrary to the ’742 provisional.4 Micro Motion has pled, with particularly, how the complete
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`reversal in language between the ’742 provisional and the ’644 application cannot be reconciled
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`with the particular ’646 patent claim limitation that purports to claim a process in all industrial
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`settings. The ’742 provisional language was rejected in the ’644 application, which adopts the
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`directly opposite language. There is no substantiation for the change, which is problematic given
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`that the data used in the ’646 patent comes exclusively from controlled laboratory experiments.
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`This cannot support Invensys’s broad claims in the ’646 patent that the Coriolis effect measuring
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`functionality is repeatable in a variety of real-world industrial batch processes.
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`4 In its pleading, Micro Motion cites at least two other instances where this is true. For
`example, in the ’742 provisional, the inventors state that they had been unable to stall any “B”
`tube – a Foxboro Coriolis tube of a particular shape. (Dkt. No. 71 at 18, ¶ 91 and 23, ¶ 33.)
`However, the ’646 patent specification deleted the letter “B” and stated instead that “laboratory
`experiments conducted thus far have been unable to stall a tube of any size with any level of gas
`phase when controlled by the digital controller 105.” (Id.) Likewise, immediately following the
`portion of the ’742 provisional that corresponds to column 58, line 48, it states: “However, the
`correction technique used here is not suitable for applications with much variation in the fluid
`density, or in three-phase flow applications, for which more research would be necessary.” (Id.
`at 18, ¶ 92 and 23-24, ¶ 34.) The ’646 patent specification omits this sentence, which provides
`that the correction techniques are not applicable in all situations, such as where the density is
`variable or in three-phase flow (which would include many oil and gas situations). (Id.)
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`4838-6019-0230.2
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 12 of 15 PageID #: 1950
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`This is a clear case of Invensys seeking to improperly extend the scope of the
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`’646 patent beyond what was disclosed in the ’742 provisional and using an unmistakably false
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`statement to do it. Such a statement is in and of itself material. See Intellect Wireless, Inc. v.
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`HTC Corp., No. 2012-1658, 2013 U.S. App. Lexis 20529, at *6 (Fed. Cir. Oct. 9, 2013).
`
`D.
`
`Under the Circumstances, There Is a Reasonable Inference of Intent
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`As pled, Micro Motion’s inequitable conduct allegations provide sufficient detail
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`under Exergen to support a reasonable inference of an intent to deceive. Neither the ’644
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`application nor the ’646 patent offer any legitimate basis for the complete rejection of the
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`language from the ’742 provisional and the adoption of language to the contrary. In the absence
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`of a credible explanation, intent to deceive can be generally inferred from the facts and
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`circumstances. Bruno Indep. Living Aids, Inc. v. Acorn Mobility Servs., Ltd., 394 F.3d 1348,
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`1354 (Fed. Cir. 2005). Moreover, pleading on “information and belief” when information lies
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`uniquely in Invensys’s possession is entirely appropriate. See Exergen, 574 F.3d at 1330.
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`Invensys dedicates more than two pages of its Motion to try and minimize the
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`significance of its flip-flopped language by arguing the alleged futility of Micro Motion’s
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`inequitable conduct case. At best, these arguments are premature; Therasense sets a standard of
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`proof, not a pleading requirement sufficient to withstand a motion to dismiss. However, even if
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`the timing was appropriate, Invensys’s attempts at justification for the language reversal lend
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`further support to infer intent to deceive.
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`First, Invensys misleadingly suggests that Invensys conducted additional testing
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`and research, the outcome of which substantiates the change. To the extent this testing and
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`research exists, which Micro Motion seriously doubts, Invensys has not produced it. Micro
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`4838-6019-0230.2
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 13 of 15 PageID #: 1951
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`Motion has made repeated requests for the specific identification or production of this material,
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`but these requests have gone unanswered. (Jelenchick Decl., Exs. G, J.)
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`Second, Invensys contends that the irreconcilable language between the ’742
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`provisional and the ’644 application (and therefore the ’646 patent) can be explained away
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`because the ’646 patent is a continuation-in-part to not just the ’742 provisional but to another
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`chain of patents stemming from U.S. Provisional 60/066,554 (“the ’554 provisional”), to which
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`the ’646 patent also claims priority. Under this theory, Invensys argues that the ’646 patent is an
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`amalgamation of certain language from the ’742 provisional and certain other language from the
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`’554 provisional, seeming to imply that the ’554 provisional will provide the basis for the
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`change. However, the language at issue appears nowhere in the ’554 provisional, which not only
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`raises further questions as to the lack of justification for the change, but provides a basis to
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`challenge Invensys’s priority claims. See New Railhead Mfg., L.L.C. v. Vermeer Mfg., 298 F.3d
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`1290, 1297 (Fed. Cir. 2002) (affirming “the district court’s holding that the disclosure of the
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`provisional application does not adequately support the invention claimed in [asserted] patent ….
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`As a result, the [asserted] patent is not entitled to the filing date of the provisional
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`application. 35 U.S.C. § 119(e)(1).”).
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`Finally, left with no other choice, Invensys argues that the contradictory
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`statements in the ’742 provisional and the ’644 application are nothing more than Micro
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`Motion’s attempt to repackage a 35 U.S.C. § 112 motion for invalidity premised on a lack of
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`written description or enablement. With this argument, Invensys seems to suggest that
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`inequitable conduct and § 112 allegations are mutually exclusive. This is not the case.
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`Invensys’s failure to satisfy either the written description and/or enablement requirements,
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`4838-6019-0230.2
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 14 of 15 PageID #: 1952
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`rendering the ’646 patent invalid, can also form the basis for a claim of inequitable conduct
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`when, as here, Invensys intentionally deceived the PTO.
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`IV. CONCLUSION
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`Invensys has ample notice of Micro Motion’s inequitable conduct counterclaim
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`and affirmative defense as to the ’646 patent. Because Micro Motion has satisfied the
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`requirements of Rule 9(b) and Exergen and sufficiently pled its allegations, the Court should
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`deny Invensys’s Motion.
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`Dated: October 25, 2013
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`Guy N. Harrison, State Bar No. 00000077
`Guy Harrison Law Offices
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`217 N. Center Street
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`Longview, Texas 75601
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`Phone: (903) 758-7361
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`Fax: (903) 753-9557
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`Email: guy@gnhlaw.com
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`Respectfully submitted,
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`/s/ Kadie M. Jelenchick
`Linda E.B. Hansen, WI Bar No. 1000660
`Richard S. Florsheim, WI Bar No. 1015905
`Jeffrey N. Costakos, WI Bar No. 1008225
`Kadie M. Jelenchick, WI Bar No. 1056506
`Matthew J. Shin, WI Bar No. 1090096
`Foley & Lardner LLP
`777 East Wisconsin Avenue
`Milwaukee, Wisconsin 53202
`Phone: (414) 271-2400
`Fax: (414) 297-4900
`Email: lhansen@foley.com
`rflorsheim@foley.com
`jcostakos@foley.com
`kjelenchick@foley.com
`mshin@foley.com
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`Attorneys for Defendant and Counterclaim-
`Plaintiff Micro Motion, Inc.
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`4838-6019-0230.2
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`Case 6:12-cv-00799-JRG Document 81 Filed 10/25/13 Page 15 of 15 PageID #: 1953
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 25, 2013, I electronically filed the foregoing
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`document with the Clerk of Court using the CM/ECF system which will send notification of such
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`filing via electronic mail to all counsel of record.
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`/s/ Kadie M. Jelenchick
`Kadie M. Jelenchick
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`12
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`4838-6019-0230.2