Case 6:12-cv-00799-JRG Document 81-11 Filed 10/25/13 Page 1 of 17 PageID #: 2304
`Case 6:12—cv—00799—JRG Document 81-11 Filed 10/25/13 Page 1 of 17 Page|D #: 2304
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`EXHIBIT I
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`EXHIBIT I
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`Case 6:12-cv-00799-JRG Document 81-11 Filed 10/25/13 Page 2 of 17 PageID #: 2305
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`C.A. No. 6:12-cv-00799-LED
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`JURY TRIAL DEMANDED
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`§§
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`§
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`§§
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`§
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`§§
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`§
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`§§
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`§§
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`INVENSYS SYSTEMS, INC.,
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`v.
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`Plaintiff,
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`and
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`Defendants.
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`MICRO MOTION INC., USA,
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`v.
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`INVENSYS SYSTEMS, INC.,
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`Counterclaim-Plaintiff, §
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`§§
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`§§
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`Counterclaim-Defendant.§
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`PLAINTIFF AND COUNTERCLAIM-DEFENDANT INVENSYS
`SYSTEMS, INC.’S OBJECTIONS AND RESPONSES TO
`DEFENDANT AND COUNTERCLAIM-PLAINTIFF
`MICRO MOTION INC.’S FIRST SET OF INTERROGATORIES
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`Plaintiff and Counterclaim-Defendant Invensys Systems, Inc. (“Invensys”), by and
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`through its attorneys, pursuant to Rule 33 of the Federal Rules of Civil Procedure and the local
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`Civil Rules of the Eastern District of Texas, hereby sets forth its objections and responses to
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`Defendant and Counterclaim-Plaintiff Micro Motion Inc.’s (“Micro Motion”) First Set of
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`Interrogatories to Plaintiff and Counterclaim-Defendant Invensys Systems, Inc.
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`(“Interrogatories”).
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`GENERAL OBJECTIONS TO INTERROGATORIES
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`1.
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`Invensys objects to the Instructions to the Interrogatories to the extent they
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`attempt to impose obligations extending beyond those imposed or authorized by the Federal
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`Rules of Civil Procedure or the Local Rules for the Eastern District of Texas.
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`2.
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`Invensys objects to each and every interrogatory to the extent that they are not
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`reasonably calculated to lead to the discovery of admissible evidence and/or do not seek
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`information or documents that are relevant to the subject matter of this action.
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`3.
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`Invensys objects to each and every interrogatory to the extent that it seeks
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`information protected, privileged, immune or otherwise exempt from discovery by the attorney-
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`client privilege, the work-product doctrine, the common interest/joint defense privilege, or any
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`other applicable privilege. Nothing contained in the responses below is intended to be, nor
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`should be considered, a waiver of any attorney-client privilege or work-product doctrine, or any
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`other applicable privilege or indemnity that may apply.
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`4.
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`Invensys objects to each and every interrogatory to the extent that they seek
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`information not within Invensys’ possession, custody, and/or control.
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`5.
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`Invensys objects to each and every interrogatory to the extent that it is overly
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`broad, unduly burdensome, vague, and/or ambiguous.
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`6.
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`Invensys objects to each and every interrogatory to the extent that it seeks
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`information or documents that are confidential, proprietary, and/or trade secrets. To the extent
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`that any interrogatory seeks documents or information that contain or constitute confidential,
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`proprietary, or trade secret information, Invensys shall only produce such information or
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`documents pursuant to the terms of the Joint Protective Order [Dkt. No. 66].
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`7.
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`Invensys objects to each and every interrogatory to the extent that it seeks
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`information or documents protected from disclosure by non-disclosure agreements or
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`confidentiality agreements with third parties.
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`8.
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`Invensys objects to these interrogatories to the extent they are compound and
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`contain multiple subparts that count separately toward the total number of individual
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`interrogatories allowed to Micro Motion.
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`9.
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`The fact that Invensys has responded to part or all of any particular interrogatory
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`is not intended and shall not be construed as a waiver by Invensys of any part of any objection to
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`such an interrogatory. Invensys’ agreement to furnish any information or identify documents in
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`response to any interrogatory shall not be deemed to constitute an admission as to the relevance,
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`competency, materiality or admissibility of any document or information sought or produced,
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`and Invensys reserves all rights with respect thereto.
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`10.
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`Invensys objects to Definition 1 insofar as the definition of “Invensys” is overly
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`broad and includes entities which Invensys does not control such as predecessors, successors and
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`joint venturers, and to the extent it purports to require Invensys to gather information from third
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`parties. Invensys further objects to Definition 1 insofar as it purports to require Invensys to
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`disclose attorney-client privileged communications or attorney work product from, inter alia,
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`“attorneys” or “draftsmen” when responding to the Interrogatories.
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`11.
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`Invensys objects to Definition 2 insofar as it incorporates the definition of
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`“Invensys,” which is objectionable as set forth above.
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`12.
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`Invensys objects to Definition 3 insofar as Micro Motion seeks to impose
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`obligations beyond those set forth in Fed. R. Civ. P. 34.
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`13.
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`Invensys objects to Definition 5 insofar as the definition of “relate to,” “related
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`to” and “relating to” is overly broad, vague, ambiguous, and unintelligible.
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`14.
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`Invensys objects to Definitions 8-12 insofar as the definition of “to identify” is
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`overly broad, unduly burdensome, implicates privacy laws, and requires Invensys to disclose
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`personal identification information, including residential addresses and telephone numbers.
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`15.
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`Invensys objects to Definition 24 to the extent that the terms “Invensys Accused
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`Product” is defined to include products beyond Invensys Foxboro Model Nos. CFT50 & CFT51
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`I/A Series Digital Coriolis Mass Flow Transmitters and the Invensys Foxboro Model Nos.
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`CFS10 & CFS20 Mass Flowtubes.
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`16.
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`These responses represent Invensys’ good faith effort to respond based on
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`information available at this time. Invensys’ investigation of this matter is continuing, and
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`Invensys specifically reserves the right to amend, supplement, correct, or clarify its responses in
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`accordance with the Federal Rules of Civil Procedure and the Local Rules of the Eastern District
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`of Texas.
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`INTERROGATORIES AND RESPONSES
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`INTERROGATORY NO. 1:
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`Separately for each asserted claim of the Invensys Patents-in-Suit describe in detail the
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`conception, reduction to practice (actual or constructive), and all activities constituting diligence
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`from conception to reduction to practice, including without limitation, an identification and
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`description of: (i) when, where, and by whom each claimed invention was conceived; (ii) the
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`specific contribution by each alleged inventor; (iii) the first written description of each claimed
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`invention (including when and where it was made and by whom); (iv) the earliest priority date of
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`each claimed invention and all bases for such priority; (v) when, where, by whom, and under
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`what circumstances each claimed invention was first reduced to practice; (vi) the first public
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`disclosure of each claimed invention, including when, where, by whom, and to whom; and (vii)
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`all evidence and witnesses corroborating the above.
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`RESPONSE TO INTERROGATORY NO. 1:
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`In addition to its General Objections, Invensys objects to Micro Motion’s characterization
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`of this Interrogatory as one interrogatory because it contains multiple subparts and is directed to
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`seeking conception and reduction to practice information for multiple patents. Each subpart of
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`this Interrogatory as to each asserted patent should be counted towards Micro Motion’s limits as
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`agreed upon by the Parties in the Discovery Order entered by the Court [Dkt. No. 53]. Invensys
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`further objects to Interrogatory No. 1 as overly broad and unduly burdensome, including the
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`terms “all activities constituting diligence” and “all evidence and witnesses corroborating the
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`above.” Subject to and without waiving the foregoing objections, Invensys responds by referring
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`Micro Motion, pursuant to Fed. R. Civ. P. 33(d), to its L.P.R. 3-2(b) production. Responding
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`further, Invensys incorporates herein its L.P.R. 3-1(e) disclosure from its Disclosure of Asserted
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`Claims and Infringement Contentions.
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`INTERROGATORY NO. 2:
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`Identify by model name, model number, and time period sold, any product or process
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`made or used by anyone other than Micro Motion, including without limitation Invensys, which
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`Invensys contends is covered by any of the claims of the Invensys Patents-in-Suit, including
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`without limitation, any products or processes that have been marketed, advertised, or marked as
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`being covered by the Invensys Patents-in-Suit, and for each such product or process state which
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`claims cover it and the date of its first offer for sale and public use in the United States.
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`RESPONSE TO INTERROGATORY NO. 2:
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`In addition to its General Objections, Invensys objects to Micro Motion’s characterization
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`of this Interrogatory as one interrogatory because it contains multiple subparts and is directed to
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`multiple patents. Each subpart of this Interrogatory as to each asserted patent should be counted
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`towards Micro Motion’s limits as agreed upon by the Parties in the Discovery Order entered by
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`the Court [Dkt. No. 53].
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`Invensys further objects to the terms “products or processes” and as
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`being vague and ambiguous.
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`Subject to and without waiving the foregoing objections, Invensys responds by
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`incorporating herein its L.P.R. 3-1(f) disclosure from its Disclosure of Asserted Claims and
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`Infringement Contentions. Responding further, Invensys states that Model Nos. CFT50 and
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`CFT51 have both been marketed, advertised, and/or marked as being covered by one or more of
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`the Invensys Patents-in-Suit.
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`INTERROGATORY NO. 3:
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`For each product or process identified in response to Interrogatory No. 2, identify
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`whether it was marked pursuant to 35 U.S.C. § 287(a), including: (i) a listing of each patent
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`number it was marked with; (ii) a description of all time periods it was marked with each
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`identified patent number; (iii) a description of all time periods it was made, used, sold or offered
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`for sale in, or imported into, the United States; (iv) a description, in an element-by-element chart,
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`of how each asserted claim of the Invensys Patents-in-Suit reads on the product or process; and
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`(v) an identification of all documents describing or supporting any of the information requested
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`by this Interrogatory.
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`RESPONSE TO INTERROGATORY NO. 3:
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`In addition to its General Objections, Invensys objects to Micro Motion’s characterization
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`of this Interrogatory as one interrogatory because it contains multiple subparts and is directed to
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`multiple patents. Each subpart of this Interrogatory as to each asserted patent should be counted
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`towards Micro Motion’s limits as agreed upon by the Parties in the Discovery Order entered by
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`the Court [Dkt. No. 53].
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`Invensys further objects to subpart (iv) of this Interrogatory insofar as
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`it seeks to impose burdens or responsibilities beyond those set forth in the Local Patent Rules,
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`specifically L.P.R. 3.1(f). Invensys further objects to the terms “product or process” and
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`“supporting” as being vague and ambiguous.
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`Subject to and without waiving the foregoing objections, Invensys responds by
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`incorporating herein its L.P.R. 3-1(f) disclosure from its Disclosure of Asserted Claims and
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`Infringement Contentions. Responding further, Invensys states that marking of the CFT 50 with
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`the numbers of one or more of the Invensys Patents-in-Suit commenced in 2002, and marking of
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`the CFT 51 with the numbers of one or more of the Invensys Patents-in-Suit commenced in
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`2012. Responding further, Invensys refers Micro Motion, pursuant to Fed. R. Civ. P. 33(d), to
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`the documents it will be producing in this litigation.
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`INTERROGATORY NO. 4:
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`Identify each person who was associated with preparing, filing, or prosecuting the
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`Invensys Patents-in-Suit, and describe in detail the nature of each person’s involvement.
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`RESPONSE TO INTERROGATORY NO. 4:
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`In addition to its General Objections, Invensys objects to this Interrogatory as overly
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`broad and unduly burdensome and to the extent it seeks to elicit information subject to and
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`protected by the attorney-client privilege and/or the work product doctrine. Invensys further
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`objects that the term “person who was associated with” is vague and ambiguous.
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`Subject to and without waiving the foregoing objections, Invensys responds as follows:
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`Name
`Kevin Greene, Fish & Richardson P.C.
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`John Hayden, Fish & Richardson P.C.
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`William Hughes, Fish & Richardson P.C.
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`Meghan McGovern, Fish & Richardson P.C.
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`Gregory Walters, Fish & Richardson P.C.
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`Nature of Involvement
`Prosecution of U.S. Patent Nos.:
`7,124,646; 7,136,761; 7,505,854; 7,571,062;
`8,000,906
`Prosecution of U.S. Patent Nos.:
`6,311,136; 6,754,594
`Prosecution of U.S. Patent Nos.:
`6,754,594
`Prosecution of U.S. Patent No.:
`7,505,854
`Prosecution of U.S. Patent Nos.:
`7,124,646; 7,136,761; 6,311,136; 6,754,594
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`INTERROGATORY NO. 5:
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`Identify any entity or person including, but not limited to, any holding company, parent,
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`subsidiary, affiliate, shareholder, or third party that has any financial interest, direct or indirect,
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`in the outcome of the current litigation or in any of the Invensys Patents-in-Suit.
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`RESPONSE TO INTERROGATORY NO. 5:
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`In addition to its General Objections, Invensys objects to this Interrogatory as overly
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`broad and unduly burdensome. Invensys further objects to this Interrogatory as neither
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`reasonably calculated to lead to the discovery of admissible evidence nor seeking information
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`relevant to the claims and defenses in this case. Invensys further objects to the terms “third
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`party”; “any financial interest”; and “direct or indirect” as being vague and ambiguous.
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`INTERROGATORY NO. 6:
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`Identify and describe in detail each and every instance in which Invensys has licensed,
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`attempted to license, offered to license, suggested a license under, discussed a license under,
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`entered a covenant not to sue, entered a technology transfer agreement, or settled a lawsuit that
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`relates to the subject matter of any of the Invensys Patents-in-Suit and/or the Micro Motion
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`Patents-in-Suit, including, but not limited to, the persons, places, dates, and material terms
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`associated with each instance.
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`RESPONSE TO INTERROGATORY NO. 6:
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`In addition to its General Objections, Invensys objects to this Interrogatory to the extent it
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`seeks to elicit information subject to and protected by the attorney-client privilege and/or the
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`attorney work product doctrine. Invensys further objects to Micro Motion’s characterization of
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`this Interrogatory as one interrogatory because it contains multiple subparts and is directed to
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`multiple patents. Each subpart of this Interrogatory as to each asserted patent should be counted
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`towards Micro Motion’s limits as agreed upon by the Parties in the Discovery Order entered by
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`the Court [Dkt. No. 53].
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`Invensys further objects to this Interrogatory to the extent it calls for
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`disclosure of confidential information protected by agreements with third parties, and insofar as
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`the terms “suggested”, “discussed”, and “relates to the subject matter of” are vague, ambiguous
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`and overly broad.
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`Subject to and without waiving the foregoing objections, Invensys refers Micro Motion,
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`pursuant to Fed. R. Civ. P. 33(d), to the documents it will be producing in this litigation.
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`INTERROGATORY NO. 7:
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`Describe in detail the pre-suit investigation you or a third party on your behalf undertook
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`to form the basis of your allegation that Emerson and/or Micro Motion has infringed any claim
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`of the Invensys Patents-in-Suit, including, but not limited to, (i) the dates of all activities related
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`to your pre-suit investigation; (ii) the persons that participated or were involved in your pre-suit
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`investigation; (iii) any and all products examined, inspected, evaluated, or tested during the
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`course of your pre-suit investigation; (iv) the manner in which any products were examined,
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`inspected, evaluated, or tested during the course of your pre-suit investigation; and (v) all
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`documents and testing results relating to your pre-suit investigation.
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`RESPONSE TO INTERROGATORY NO. 7:
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`In addition to its General Objections, Invensys objects to Micro Motion’s characterization
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`of this Interrogatory as one interrogatory because it contains multiple subparts and is directed to
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`multiple patents. Each subpart of this Interrogatory as to each asserted patent should be counted
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`towards Micro Motion’s limits as agreed upon by the Parties in the Discovery Order entered by
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`the Court [Dkt. No. 53].
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`Invensys further objects to this Interrogatory to the extent it seeks to
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`elicit information subject to and protected by the attorney-client privilege and/or the work
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`product doctrine. Such information, if any, will be set forth on a log of privileged documents to
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`be produced in this litigation.
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`INTERROGATORY NO. 8:
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`Describe in detail the legal and factual bases supporting any claims for lost profits,
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`reasonable royalties, or any other damages that Invensys claims to have suffered as a result of
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`any conduct by Emerson and/or Micro Motion, and identify all evidence that Invensys contends
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`corroborates its claim for damages.
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`RESPONSE TO INTERROGATORY NO. 8:
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`In addition to its General Objections, Invensys objects to Micro Motion’s characterization
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`of this Interrogatory as one interrogatory because it contains multiple subparts and is directed to
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`multiple patents. Each subpart of this Interrogatory as to each asserted patent should be counted
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`towards Micro Motion’s limits as agreed upon by the Parties in the Discovery Order entered by
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`the Court [Dkt. No. 53].
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`Invensys further objects to this Interrogatory to the extent that the
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`requested subject matter is properly the subject of expert opinion and testimony, the exchange of
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`which is regulated by this Court’s Second Amended Docket Control Order, [Dkt. No. 69].
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`Invensys further objects to this Interrogatory as being overly broad with regards to the terms
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`“any other damages” and “all evidence.” Invensys further objects to this Interrogatory as
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`premature insofar as discovery has just commenced, and it has not received discovery from
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`Micro Motion and Emerson yet relative to these issues. Subject to and without waiving the
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`foregoing objections, Invensys will provide a further response following receipt of discovery
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`from Micro Motion and Emerson.
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`INTERROGATORY NO. 9:
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`Identify each and every instance in which you contend Invensys has lost a sale as a result
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`of the alleged infringement of Micro Motion or Emerson, including an identification of (i) the
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`customer or potential customer to whom the sale was made; (ii) the date or approximate date of
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`the same; (iii) the Invensys product offered or proposed to the customer; (iv) the person at the
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`customer most knowledgeable about the proposed transaction; and (v) the person at Invensys
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`most knowledgeable about the proposed transaction.
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`RESPONSE TO INTERROGATORY NO. 9:
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`In addition to its General Objections, Invensys objects to Micro Motion’s characterization
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`of this Interrogatory as one interrogatory because it contains multiple subparts and is directed to
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`multiple patents. Each subpart of this Interrogatory as to each asserted patent should be counted
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`towards Micro Motion’s limits as agreed upon by the Parties in the Discovery Order entered by
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`the Court [Dkt. No. 53].
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`Invensys further objects to this Interrogatory as premature insofar as
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`discovery has just commenced, and it has not received discovery from Micro Motion and
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`Emerson yet relative to these issues. Subject to and without waiving the foregoing objections,
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`Invensys will provide a further response following receipt of discovery from Micro Motion and
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`Emerson.
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`INTERROGATORY NO. 10:
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`Describe in detail all sources of funding for any and all research that led to the alleged
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`inventions in any of the Invensys Patents-in-Suit, identifying the name of the funding source, the
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`amount of funding received from each funding source, conditions imposed by each funding
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`source, and any and all agreements related to the funding and/or the ownership interests in the
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`alleged inventions that arose out of the research for which funding was provided.
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`RESPONSE TO INTERROGATORY NO. 10:
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`In addition to its General Objections, Invensys objects to Micro Motion’s characterization
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`of this Interrogatory as one interrogatory because it contains multiple subparts and is directed to
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`multiple patents. Each subpart of this Interrogatory as to each asserted patent should be counted
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`towards Micro Motion’s limits as agreed upon by the Parties in the Discovery Order entered by
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`the Court [Dkt. No. 53].
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`Invensys further objects to this Interrogatory as neither reasonably
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`calculated to lead to the discovery of admissible evidence nor seeking information relevant to the
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`claims and defenses in this case insofar as it concerns funding and sources of funding. Subject to
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`and without waiving its objections, Invensys refers Micro Motion, pursuant to Fed. R. Civ. P.
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`33(d), to the documents it will be producing in this litigation.
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`INTERROGATORY NO. 11:
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`For each Invensys Accused Product state in detail the complete basis for Invensys’s
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`position, if any, that such Invensys Accused Product does not infringe the Micro Motion Patents-
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`in-Suit, identify all documents or evidence that support this position, and set forth these
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`contentions in a three-column claim chart setting out in the left column the claim elements, in the
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`middle column the claim elements you contend are missing, and in the right column the basis for
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`your contention that the claim element is missing.
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`RESPONSE TO INTERROGATORY NO. 11:
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`In addition to its General Objections, Invensys objects to Micro Motion’s characterization
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`of this Interrogatory as one interrogatory because it contains multiple subparts and is directed to
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`multiple patents. Each subpart of this interrogatory as to each asserted patent should be counted
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`towards Micro Motion’s limits as agreed upon by the Parties in the Discovery Order entered by
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`the Court [Dkt. No. 53]. Invensys further objects to this Interrogatory as premature to the extent
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`that the requested subject matter is properly the subject of expert opinion and testimony, the
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`exchange of which is regulated by this Court’s Second Amended Docket Control Order, [Dkt.
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`No. 69]. Invensys further objects to this Interrogatory as premature in light of the claim
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`construction schedule agreed to by the parties and reflected in this Court’s Second Amended
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`Docket Control Order, [Dkt. No. 69].
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`Invensys further objects to this Interrogatory as overly
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`broad and unduly burdensome. Invensys further objects to this Interrogatory to the extent it
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`seeks to elicit information subject to and protected by the attorney-client privilege, the attorney
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`work product doctrine and/or other applicable privileges, protections, or immunities. Invensys
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`further objects to this Interrogatory to the extent it improperly seeks to shift the burden of proof
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`on infringement related issues from Micro Motion to Invensys. Subject to and without waiving
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`the foregoing objections, Invensys responds as follows:
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`At a minimum, Invensys does not infringe because Micro Motion has failed to
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`demonstrate or show that the every element of each asserted claim is present in the Accused
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`Product (as specified in Micro Motion’s L.P.R. 3-1 Infringement Contentions). For example and
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`without limitation, Micro Motion has failed to show that, as required by the asserted claims, (i)
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`any Accused Product contains a digital notch filter, digital notch filtration means, phase value
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`determination means, phase difference means, notch adaptation means, means that is cooperative
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`with a digital notch filtration means, digital filtration means, any method step involving any
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`means identified herein, or any equivalent to any means identified herein or any method step
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`involving any means identified herein, for example, the Accused Product does not alter filter
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`parameters of a digital notch filtration means because it does not contain a digital notch filtration
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`means; (ii) any Accused Product decimates samples, calculates a normalized frequency,
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`demodulates signals to translate the signals to a center frequency, calculates a normalized
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`pulsation of a normalized frequency, decimates samples from a first rate to a desired rate,
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`calculates a dot product, performs a complex demodulation to determine frequency, performs a
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`complex demodulation using a modulated normalized frequency, modulate a normalized
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`frequency, or any equivalent to any step identified herein or any system, component or device
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`alleged to perform any step identified herein.
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`Invensys reserves the right to modify, update, amend, alter and/or supplement these
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`non-infringement positions as the case progresses, claim construction discovery proceeds, and/or
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`after a claim construction Order is issued in this case. Discovery is ongoing and Invensys has
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`not yet identified nor had an opportunity to discover or review all relevant facts or documents in
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`this case that might be responsive to this interrogatory. Because Invensys’ investigation of facts
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`is continuing, Invensys’ response to this interrogatory is made without prejudice to its right to
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`supplement this response and to introduce any and all documents and other evidence of any kind
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`in the proceedings of this action.
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`EAST\59930182.1
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`14
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`Case 6:12-cv-00799-JRG Document 81-11 Filed 10/25/13 Page 16 of 17 PageID #: 2319
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`Date: September 27, 2013
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`Respectfully submitted,
`
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
`State Bar No. 21671300
`Jeffrey L. Johnson
`State Bar No. 24029638
`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
`
`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
`
`ATTORNEYS FOR PLAINTIFF INVENSYS
`SYSTEMS, INC.
`
`EAST\59930182.1
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`15
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`

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`Case 6:12-cv-00799-JRG Document 81-11 Filed 10/25/13 Page 17 of 17 PageID #: 2320
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`CERTIFICATE OF SERVICE
`
`I certify that the foregoing document was filed electronically on September 27, 2013,
`pursuant to Local Rule CV-5(a) and has been served on all counsel who have consented to
`electronic service. Any other counsel of record will be served by first class U.S. mail on this
`same date.
`
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
`
`EAST\59930182.1
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`16