Case 6:12-cv-00799-JRG Document 92 Filed 12/11/13 Page 1 of 20 PageID #: 2470
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`C.A. No. 6:12-cv-00799-LED
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`JURY TRIAL DEMANDED
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`INVENSYS SYSTEMS, INC.,
`
`v.
`
`Plaintiff,
`
`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
`
`and
`
`Defendants.
`
`MICRO MOTION INC., USA,
`
`v.
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`Counterclaim-Plaintiff,
`
`INVENSYS SYSTEMS, INC.,
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`Counterclaim-Defendant.
`
`PLAINTIFF’S RESPONSE TO DEFENDANT EMERSON ELECTRIC CO.’S MOTION
`FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT
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`Case 6:12-cv-00799-JRG Document 92 Filed 12/11/13 Page 2 of 20 PageID #: 2471
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`Defendant Emerson Electric Co.’s (“Emerson”) motion for summary judgment of non-
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`infringement is without merit and should be denied. At a minimum, it is premature. Emerson
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`apparently hoped to shield the evidence of its liability and obtain an early summary judgment by
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`withholding documents from Plaintiff Invensys Systems, Inc. (“Invensys”). To date, Emerson
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`has not produced any documents, even though standard practice in this district, as well as the
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`Court’s Discovery Order in this case, at 2, ECF No. 53, requires parties to produce documents
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`related to any defensive matter, including non-infringement. See 35 U.S.C. § 282(b)(1).
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`But even without any document production from Emerson, Invensys has more than
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`sufficient evidence from other sources to defeat summary judgment. Invensys’s evidence shows
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`that Emerson directly infringes by, among other things, soliciting and negotiating sales of the
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`accused Coriolis flowmeters as well as demonstrating those flowmeters to potential customers.
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`Emerson also induces infringement by actively marketing and promoting the sale of the accused
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`Coriolis flowmeters,
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`instructing customers how to use the flowmeters, and repairing and
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`servicing the accused flowmeters.1
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`Alternatively, even if the Court decides not to deny Emerson’s summary judgment
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`motion outright on this record, the evidence Invensys has already gathered (none of which came
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`from Emerson) warrants an opportunity for actual discovery from Emerson, which Invensys has
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`not yet been provided and will move to compel (if necessary).
`
`1 The basic premise underlying Emerson’s motion—that it “appears to have been made a
`defendant in this lawsuit solely because the other co-defendant [Micro Motion], an indirect
`wholly-owned subsidiary of Emerson, manufactures and sells
`the accused Coriolis
`flowmeters”—completely misstates Invensys’s claims against Emerson. Emerson’s Mot. for
`Summ. J. of Non-Infringement at 1, ECF No. 83.
`Invensys seeks to hold Emerson directly
`liable for its own acts of infringement, not vicariously liable for Micro Motion’s infringement.
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`ISSUES PRESENTED (REPHRASED)
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`Although Emerson states the issues presented by its summary judgment motion broadly,
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`the arguments advanced in its brief are actually quite narrow. “[A] party seeking summary
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`judgment always bears the initial responsibility of informing the district court of the basis for its
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`motion” by “ ‘showing’—that is, pointing out to the district court—that there is an absence of
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`evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323,
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`325 (1986).
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`In its motion, Emerson neither raises an issue concerning the technical aspects of
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`infringement nor claims that it lacked the requisite knowledge and intent to induce infringement.
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`Emerson’s only argument is that it has not engaged in any act that constitutes infringement under
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`35 U.S.C. § 271. Therefore, the issues presented by Emerson’s motion should be rephrased as
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`follows:
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`1) Whether there is evidence creating a genuine issue of material fact that
`Emerson has engaged in conduct
`that would constitute direct or
`indirect
`infringement under 35 U.S.C. § 271.
`
`2) Alternatively, whether the Court should defer ruling on Emerson’s motion until
`discovery on this issue is complete.
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`STATEMENT OF UNDISPUTED MATERIAL FACTS
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`A.
`
`The Relationship Between the Defendants
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`Emerson is the parent company and sole shareholder of Defendant Micro Motion, Inc.
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`(“Micro Motion”). See Emerson’s Mot. for Summ. J. of Non-Infringement at 2, ¶ 6, ECF No. 83
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`(“Emerson’s MSJ”). Micro Motion manufactures the accused Coriolis flowmeters. See id. ¶ 8.
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`Micro Motion, along with several other Emerson subsidiaries, are part of “Emerson Process
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`Management” (“EPM”), which Emerson describes as one of its five “business platforms.” See
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`id. ¶¶ 2-3.
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`B.
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`Emerson’s Direct Sales Activities
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`Robert Arias, a former consultant in the oil and gas industry and a current Invensys sales
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`executive, is familiar with Emerson’s sales practices. See Decl. of Robert Arias ¶¶ 4-5, 12 (Ex.
`
`A). Emerson’s marketing strategy is built around providing integrated solutions to customers by
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`offering suites of products that meet a wide array of the customer’s needs. See id. ¶¶ 12-13.
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`Accordingly, Emerson’s sales representatives hold themselves out as representatives of
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`Emerson or EPM, not as representatives of the various subsidiaries under the EPM umbrella.
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`See id. ¶¶ 5-6. Emerson’s sales representatives also sell goods from multiple Emerson
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`subsidiaries. See id. ¶ 5. On at least some occasions, negotiations and discussions of technical
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`requirements are conducted by Emerson’s sales agents, not by representatives of the various
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`Emerson subsidiaries.
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`See id. ¶ 7.
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`In addition, when customers purchase products across
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`multiple Emerson brands, they receive a single purchase order from Emerson, not from its
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`subsidiaries. See id. ¶ 8. This is true for a variety of Emerson products, including the accused
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`Micro Motion flowmeters. See id. ¶¶ 5-6, 12.
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`In one recent example, several flowmeter manufacturers,
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`including Invensys and
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`Emerson, were invited to demonstrate their products for a major oil and gas company.2 See id.
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`¶ 11. The presenter for Emerson identified himself as a representative of EPM and was assisted
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`by someone who identified himself as a representative of Micro Motion. See id. The Micro
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`Motion representative focused primarily on the technical aspects of the demonstration (i.e.,
`
`setting up and operating the flowmeter), and the EPM representative was the person who
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`primarily communicated with the potential customer. See id. Both the Emerson and Micro
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`Motion representatives actively participated in all aspects of the demonstration, however. See id.
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`2 Because of a non-disclosure agreement, the identity of this company is confidential, although
`Invensys will disclose its identity to Emerson at its request. See id. ¶ 11.
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`During the demonstration, the Micro Motion flowmeter was actually used to measure the flow of
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`oil, including entrained gas. See id. As a result of this sales demonstration, Emerson was
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`awarded a portion of the oil and gas company’s business. See id.
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`C.
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`Emerson’s Marketing and Promotion of the Accused Products
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`Emerson also actively promotes and markets Micro Motion’s Coriolis flowmeters. For
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`example, Jim Cahill maintains the “Emerson Process Experts” blog on which he actively
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`promotes the sale of Micro Motion flowmeters. Cahill describes himself as “the Chief Blogger,
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`Surface Dweller, and Head of Social Media for Emerson Process Management.” See Jim Cahill,
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`“About Jim Cahill,” available at http://www.emersonprocessxperts.com/about-jim-cahill/ (Ex.
`
`B). Similarly, Cahill’s LinkedIn page identifies him as “Emerson’s Chief Blogger, Community
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`Leader, Head of Social Media, and Inventor.”
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`LinkedIn, “Jim Cahill,” available at
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`http://www.linkedin.com/in/jimcahill (Ex. C). It is reasonable to infer that Cahill is an employee
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`of Emerson, not Micro Motion.
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`The purpose of the Emerson Process Experts blog “is to highlight the experts within
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`Emerson Process Management.”
`
`See Jim Cahill, “About
`
`Jim Cahill,” available at
`
`http://www.emersonprocessxperts.com/about-jim-cahill/ (Ex. B). Notably, Micro Motion has its
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`own blog distinct from the Emerson Process Experts blog.
`
`See Micro Motion Online
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`Community,
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`“Browse
`
`Blogs,”
`
`available
`
`at
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`http://community.micromotion.com/browse_blogs.php (Ex. D). The Emerson Process Experts
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`blog also contains articles relating to products manufactured by Emerson subsidiaries other than
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`Case 6:12-cv-00799-JRG Document 92 Filed 12/11/13 Page 6 of 20 PageID #: 2475
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`Micro Motion.3 Thus, it can reasonably be inferred that Cahill maintains the Emerson Process
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`Experts blog on behalf of Emerson, not Micro Motion (or any other Emerson subsidiary).
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`The Emerson Process Experts blog contains a number of marketing articles promoting
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`Micro Motion’s flowmeters. For example, a post titled “Understanding and Handling Entrained
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`Gas
`
`Flow
`
`Measurement,”
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`available
`
`at
`
`http://www.emersonprocessxperts.com/2013/01/understanding-and-handling-entrained-gas-flow-
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`measurement/ (Ex. H), includes four videos promoting the benefits of the accused Coriolis
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`flowmeters. Several other blog posts promote the use of Micro Motion’s flowmeters in a variety
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`of specific industries and applications. For example, in a post titled “More Accurate Marine Fuel
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`Measurement,” available at http://www.emersonprocessxperts.com/2013/10/more-accurate-
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`marine-fuel-measurement/ (Ex. I), Cahill actively promotes the use of the accused flowmeters in
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`the marine bunkering field. Similarly, a post titled “Truck Loading/Unloading with Micro
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`Motion,” available at http://www.emersonprocessxperts.com/2013/10/truck-loading-unloading-
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`with-micro-motion/ (Ex. J), describes the benefits the accused flowmeters provided to a chemical
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`plant in Wisconsin. A post titled “Impact of Reduce[d] Uncertainty of Flow Measurement in
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`Development
`
`of
`
`Rocket
`
`Liquid
`
`Propellants
`
`Engines,”
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`available
`
`at
`
`http://www.emersonprocessxperts.com/2013/10/impact-of-reduce-uncertainty-of-flow-
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`measurement-in-development-of-rocket-liquid-propellants-engines/ (Ex. K), extolls the benefits
`
`3 See, e.g., Jim Cahill, “Pressure Measurement for Demanding Nuclear Power Applications,”
`available
`at
`http://www.emersonprocessxperts.com/2013/09/pressure-measurement-for-
`demanding-nuclear-power-applications/
`(Rosemount Nuclear
`pressure measurement
`technologies) (Ex. E); Jim Cahill, “Inferring Aseptic Valve Diaphragm Maintenance,”
`available
`at
`http://www.emersonprocessxperts.com/2012/12/inferring-aseptic-valve-
`diaphragm-maintenance/ (ASCO Numatics valve islands and G3 electronics modules) (Ex. F);
`Jim Cahill, “Securing Ovation Systems Per NERC CIP Standards,” available at
`http://www.emersonprocessxperts.com/2012/02/securing-ovation-systems-per-nerc-cip-
`standards/ (Ovation security products) (Ex. G).
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`Case 6:12-cv-00799-JRG Document 92 Filed 12/11/13 Page 7 of 20 PageID #: 2476
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`of using Micro Motion’s accused flowmeters in rocket test beds. All these Emerson blog posts
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`describe the benefits and advantages of Micro Motion’s Coriolis flowmeters with an eye toward
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`promoting their sale and use.
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`Nor is Cahill the only Emerson employee who actively promotes the sale of Micro
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`Motion’s Coriolis flowmeters. A video posted on “Emerson Exchange 365” (described as “The
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`Peer-to-Peer Online Emerson Global Users Exchange Community”) features Christopher Connor
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`promoting the use of Micro Motion’s accused flowmeters in several industries. See Emerson
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`Exch.
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`365,
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`“Video
`
`on New Mass
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`Flow and Density Meters,”
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`available
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`at
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`http://community.emerson.com/process/emerson-exchange/b/weblog/archive/2013/10/03/video-
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`on-new-mass-flow-and-density-meters.aspx (Ex. L). Both the video itself and Connor’s
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`LinkedIn page identify Connor as an employee of EPM or Emerson.
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`See id.; LinkedIn,
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`“Christopher Connor,” available at http://www.linkedin.com/pub/christopher-connor/1a/420/173
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`(identifying Connor as “Director of Marketing, Asia Pacific at Emerson”) (Ex. M).
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`D.
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`Emerson Teaches Its Customers How to Use the Accused Products
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`Emerson also teaches its customers how to use Micro Motion’s Coriolis flowmeters. For
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`example, at the 2013 Emerson Exchange Americas conference, Emerson personnel taught
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`several courses explaining how to use Micro Motion’s flowmeters:
`
`Title
`Coriolis Well Head
`Measurement—
`Alternative to Traditional
`Well Testing (MTS)
`Best Practices for Gas
`Flow Measurement Using
`dP, Vortex and Coriolis
`
`Abstract Excerpt
`Identifying “Emerson Coriolis meter[s]” as
`a way to continuously monitor wells.
`
`“The user will learn best practices around
`installation and configuration, common
`misapplications, and sizing tips. In
`addition, users will learn about diagnostic
`capabilities to help troubleshoot difficult
`applications.”
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`6
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`Presenter(s)
`Chandramohan MC,
`EPM; Omar
`Aladham, EPM
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`Joel Lemke, EPM;
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`Case 6:12-cv-00799-JRG Document 92 Filed 12/11/13 Page 8 of 20 PageID #: 2477
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`Title
`Ramp up Your Revenue:
`Batching and Blending
`Best Practices
`Coriolis Installation Best
`Practices & Smart Meter
`Verification
`
`Presenter(s)
`Anna Pishchulina,
`EPM
`
`Anthony Gentile,
`EPM;
`
`Abstract Excerpt
`“Best practices will be presented in piping
`design, batch sequencing, and flowmeter
`selection using state-of-the-art Coriolis.”
`“Whether your [sic] already use Coriolis
`meters or not, you will learn basic trouble
`shooting and meter commissioning
`techniques. This will allow you to apply
`Coriolis to more challenging applications in
`your plant and also learn about an exciting
`Micro Motion capability in the area of
`Smart Meter Verification.”
`
`See Listing of Sessions (Microsoft Excel .xls file) (rows 407-08, 414-15, 583-84, 703-04),
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`available at http://www.emersonexchange.org/2013/agenda.asp (follow “listing of sessions”
`
`link) (Ex. N).
`
`E.
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`Emerson Repairs and Services the Accused Products
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`Emerson also provides repair services for the accused Coriolis flowmeters. When he
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`worked as a consultant, Arias sought technical support and repair services for Micro Motion
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`Coriolis flowmeters. See Arias Decl. ¶ 9 (Ex. A). For most repair and support requests, he dealt
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`with individuals who identified themselves as representatives of Emerson or EPM. See id.
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`Micro Motion technicians became involved only if major or complex repairs were required. See
`
`id.
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`In addition, the “Service and Support” page on the Micro Motion portion of the Emerson
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`website states that “Emerson provides unparalleled service and support for all your Micro
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`Motion Coriolis Flow Density and Viscosity instrument needs. Our extensive network of
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`Certified Field Service personnel provides on-site assistance from instrument start-up to trouble
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`shooting and recalibration.” Emerson, “Micro Motion Service & Support,” available at
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`http://www2.emersonprocess.com/en-US/brands/micromotion/service-support/Pages/index.aspx
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`(emphasis added) (Ex. O). The technician pictured on the website is also wearing a shirt with an
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`EPM logo, not a Micro Motion logo. Id. Moreover, a brochure titled “Emerson Flow On-Site
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`Calibration
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`Services,”
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`available
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`at
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`http://www2.emersonprocess.com/en-
`
`us/brands/micromotion/service-support/fieldservice/Pages/index.aspx (click “Download the On-
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`Site Calibration Flyer”) (Ex. P), provides a number customers can call to have a technician
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`perform an on-site calibration of their Micro Motion Coriolis flowmeters. This number is
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`answered “Emerson Process Management,” not Micro Motion. See Arias Decl. ¶ 14 (Ex. A).
`
`ARGUMENT
`
`I.
`
`Emerson Is Liable for Its Own Acts of Infringement.
`
`A.
`
`Invensys Is Not Attempting to Hold Emerson Vicariously Liable for Micro
`Motion’s Infringement.
`
`Invensys’s claims against Emerson are not based on a vicarious liability or veil piercing
`
`theory. See Emerson’s MSJ at 12-15. To the contrary, Emerson is liable for its own acts of
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`infringement by directly selling, offering for sale, and using the accused Coriolis flowmeters and
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`by indirectly promoting the sale, instructing in the use of, and repairing the accused flowmeters.
`
`Similarly, Invensys is not arguing that Emerson is liable simply because it allows Micro
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`Motion to use the EPM brand name. See id. at 11. But the fact that the individuals who sell,
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`repair, and teach customers how to use Micro Motion’s Coriolis flowmeters publicly hold
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`themselves out as representatives of Emerson, apparently with Emerson’s knowledge and
`
`consent, at least raises a fact question as to whether those individuals are Emerson’s agents.
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`Moreover, the fact that Emerson’s sales representatives and marketing personnel handle products
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`from multiple Emerson brands supports a reasonable inference that these individuals work for
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`Emerson, not one of its subsidiaries. Emerson is, of course, liable for the acts of its agents,
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`including acts that constitute patent infringement.
`
`See 5 DONALD S. CHISUM, CHISUM ON
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`PATENTS § 16.06[1], 16-648 to 16-649 (“The courts treat patent infringement as a species of tort
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`and apply general principles of agency law as to the liability of a principal for the acts of a
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`servant or agent.” (footnotes omitted)).4
`
`B.
`
`The Evidence Indicates that Emerson and EPM Are the Same Entity.
`
`Emerson describes EPM as one of its “business platforms,” not as a corporation or other
`
`recognized business organization. Emerson’s MSJ at 2, ¶ 2.
`
`In addition, although Emerson
`
`identifies the state of incorporation of both Emerson and Micro Motion, it does not do so for
`
`EPM.
`
`Id. at 2, ¶¶ 1, 4.
`
`It is reasonable to infer from this evidence that EPM is merely an
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`unincorporated division within Emerson. “A division of a corporation is not a separate legal
`
`entity but is the corporation itself.” W. Beef, Inc. v. Compton Inv. Co., 611 F.2d 587, 591 (5th
`
`Cir. 1980) (quotations omitted) (holding that
`
`the district court correctly determined that
`
`separately incorporated subsidiaries were distinct from the parent company but erred by
`
`concluding that an unincorporated division was distinct from the parent); see also Raytheon Co.
`
`v. ITT Corp., No. 4:11-CV-800, 2013 WL 5450414, at *1 (E.D. Tex. Sept. 30, 2013); Gen.
`
`Dynamics Corp. v. United States, 47 Fed. Cl. 514, 530 (Fed. Cl. 2000). Accordingly, there does
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`not appear to be any legal distinction between Emerson and EPM.5
`
`4 Ronald A. Katz Technology Licensing, L.P. v. Verizon Communications, Inc., No. Civ.A. 01-
`5627, 2002 WL 31834833 (E.D. Pa. Dec. 18, 2002), on which Emerson relies, did not address
`agency issues, only veil piercing. Mahurkar v. C.R. Bard, Inc., No. 01 C 8452, 2003 WL
`355636 (N.D. Ill. Feb. 13, 2003), which Emerson also cites, is largely irrelevant for the same
`reason. Notably, however, in Mahurkar the court partially denied summary judgment because
`there was evidence that employees of the parent company were actively involved in testing the
`accused products. See id. at *8.
`5 In the argument section of its brief, Emerson claims that EPM and Emerson are separate
`entities. See id. at 11. Emerson does not provide any evidence to support this assertion,
`however. Emerson cites ¶ 2 of its statement of facts, which in turn cites ¶¶ 2-3 of the
`declaration of Randall Ledford. See id. at 2, 11. Although Ledford states that Emerson and
`Micro Motion are separate entities, he merely describes EPM as a “business platform” and
`never states that Emerson and EPM are separate legal entities. See id. Ex. 8 at ¶¶ 2-4. This
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`II.
`
`Emerson Directly Sells the Accused Coriolis Flowmeters.
`
`A.
`
`Emerson Sales Representatives Sell Micro Motion Flowmeters.
`
`Emerson employs sales representatives who directly sell the accused Coriolis flowmeters.
`
`In their presentations to customers, Emerson’s sales representatives identify themselves as
`
`employees of Emerson or EPM, not Emerson’s subsidiaries. See Arias Decl. ¶¶ 5-6 (Ex. A).
`
`Emerson’s sales representatives also sell products from multiple Emerson subsidiaries. See id.
`
`¶ 5, 13. Negotiations and technical discussions are made through these Emerson sales
`
`representatives, not with representatives of the Emerson subsidiaries. See id. ¶ 7. Finally,
`
`Emerson itself sends purchase orders to its customers when they purchase across multiple
`
`Emerson brands. See id. ¶ 8. Emerson follows this sales practice with a variety of products,
`
`including the accused Coriolis flowmeters.6 See id. ¶¶ 5-6, 12-13.
`
`By soliciting sales of the accused flowmeters and actually negotiating contracts for the
`
`sale of those flowmeters, Emerson has sold and offered for sale the accused flowmeters. See
`
`Transocean Offshore Deepwater Drilling, Inc. v. Maersk Contractors USA, Inc., 617 F.3d 1296,
`
`1311 (Fed. Cir. 2010) (“A ‘sale’ is not limited to the transfer of tangible property; a sale may
`
`omission is particularly telling because Emerson could have easily offered evidence showing
`that EPM is a distinct legal entity, just as it did with Micro Motion. Moreover, Emerson
`should have been aware of EPM’s relevance to this case because Invensys alleged in its
`complaint
`that “Emerson Electric Company through its Division, Emerson Process
`Management, does business in and has facilities in this District” and referred to Emerson and
`EPM collectively throughout its complaint. Invensys’s 1st Am. Compl. ¶ 2, ECF No. 25.
`Emerson also refers to Emerson Process Management LLLP (“EPM LLP”), which it
`claims is a Delaware limited liability limited partnership. See id. at 6. Emerson does not
`disclose the relationship between the EPM “business platform” and EPM LLLP or attempt to
`show that the “business platform” and the Delaware partnership are the same entity. To the
`contrary, in its brief Emerson refers to the business platform as “EPM” and to the partnership
`by its full name “Emerson Process Management LLLP.” See id. at 2, ¶ 2 & 6, ¶¶ 35-37. This
`further suggests that the business platform is not the same entity as the partnership.
`6 This is consistent with Emerson’s overall marketing strategy of providing integrated solutions
`to customers by offering suites of products that meet a wide array of the customer’s needs. Id.
`¶¶ 12-13.
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`also be the agreement by which such a transfer takes place.”). Emerson’s insistence that it does
`
`not sell the accused the flowmeters must be disregarded in light of Invensys’s evidence. See
`
`Checkpoint Sys., Inc. v. All-Tag Sec. S.A., 412 F.3d 1331, 1338 (Fed. Cir. 2005) (“[I]t is
`
`elementary that on summary judgment all evidence and inferences are to be drawn in the non-
`
`movant’s favor.”).
`
`B.
`
`On at Least One Recent Occasion, an Emerson Representative Participated
`in the Demonstration of a Micro Motion Flowmeter that Resulted in a Sale.
`
`An Emerson representative recently participated in the demonstration of one of the
`
`accused Coriolis flowmeters for a prospective customer. See Arias Decl. ¶ 11 (Ex. A). During
`
`the demonstration, the flowmeter was actually put into operation and used to measure the flow
`
`rate of oil, which included entrained gas. See id. As a result of this demonstration, Emerson was
`
`awarded a portion of the customer’s business. See id. This activity constitutes a sale, offer for
`
`sale, and a use of the accused flowmeter. See U.S. Envt’l Prods., Inc. v. Infilco Degremont, Inc.,
`
`611 F. Supp. 371, 374 (N.D. Ill. 1985) (taking a product to a customer’s office “for the express
`
`purpose of showing that customer the physical properties of the product
`
`in an effort
`
`to
`
`consummate a sale” constitutes “use”).7
`
`7 It is irrelevant that a Micro Motion representative was also present and participated in the
`demonstration alongside the Emerson representative. See FMC Corp. v. Up-Right, Inc., 816 F.
`Supp. 1455, 1461 (N.D. Cal. 1993) (“Under federal patent law, when infringement results
`from the participation and combined or successive action of several parties, those parties are
`joint infringers, and are jointly liable.”); Shields v. Halliburton Co., 493 F. Supp. 1376, 1389
`(W.D. La. 1980) (“When infringement results from the participations and combined action of
`several parties, they are all joint infringers and jointly liable for patent infringement.”).
`
`EAST\66332722.7
`
`11
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`

`
`Case 6:12-cv-00799-JRG Document 92 Filed 12/11/13 Page 13 of 20 PageID #: 2482
`
`III.
`
`Emerson Actively Induces the Sale and Use of the Accused Coriolis Flowmeters.8
`
`A.
`
`Much of Emerson’s Briefing and Argument Is Irrelevant.
`
`Emerson limits its argument on inducement to an assertion that it does not control the
`
`design, development, or sale of Micro Motion’s Coriolis flowmeters. Emerson’s MSJ at 9-12.
`
`Contrary to Emerson’s suggestion, “inducement does not require that the induced party be an
`
`agent of the inducer or be acting under the inducer’s direction and control to such an extent that
`
`the act of the induced party can be attributed to the inducer as a direct infringer.” Akamai Techs.,
`
`Inc. v. Limelight Networks, Inc., 692 F.3d 1301, 1308 (Fed. Cir. 2012) (en banc) (per curiam).
`
`Because Invensys does not need to prove that Emerson controls Micro Motion to prevail on its
`
`inducement claim, Emerson’s argument on this issue is largely irrelevant.
`
`Similarly, while controlling the design or development of Micro Motion’s flowmeters
`
`would constitute inducement, liability under § 271(b) is not limited to design and development.
`
`To the contrary, active inducement of infringement “is as broad as the range of actions by which
`
`one in fact causes, or urges, or encourages, or aids another to infringe a patent” and excludes
`
`only accidental or inadvertent conduct. Tegal Corp. v. Tokyo Electron Co., 248 F.3d 1376, 1379
`
`(Fed. Cir. 2001) (quotations omitted); see also Arris Group, Inc. v. British Telecomm. PLC, 639
`
`F.3d 1368, 1379 n.13 (Fed. Cir. 2011) (“[A]ctive inducement of infringement . . . typically
`
`includes acts that intentionally cause, urge, encourage, or aid another to directly infringe a
`
`patent.”). As discussed below, Emerson actively induces infringement of the Micro Motion
`
`flowmeters by promoting sales of those flowmeters, instructing customers how to use the
`
`flowmeters, and repairing the flowmeters.
`
`8 Emerson vaguely complains about the inducement allegations in Invensys’s complaint. See
`Emerson’s MSJ at 9-10. Emerson has not filed a Rule 12(b)(6) motion, however, or claimed
`that it does not understand the basis of Invensys’s inducement claims.
`
`EAST\66332722.7
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`12
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`

`
`Case 6:12-cv-00799-JRG Document 92 Filed 12/11/13 Page 14 of 20 PageID #: 2483
`
`B.
`
`Emerson Induces Infringement by Promoting the Sale of Micro Motion’s
`Flowmeters.
`
`Through its Emerson Process Experts blog, Emerson actively promotes the sale of Micro
`
`Motion’s Coriolis flowmeters. The blog contains numerous articles touting the benefits of Micro
`
`Motion’s flowmeters in a variety of applications.9 Similarly, Emerson has posted a video on
`
`Emerson Exchange 365 promoting the use of the accused flowmeters. See Emerson Exch. 365,
`
`“Video
`
`on
`
`New
`
`Mass
`
`Flow
`
`and
`
`Density
`
`Meters,”
`
`available
`
`at
`
`http://community.emerson.com/process/emerson-exchange/b/weblog/archive/2013/10/03/video-
`
`on-new-mass-flow-and-density-meters.aspx (Ex. L). “Inducement embraces a wide variety of
`
`sales-related activities, including advertising, solicitation, and product instruction.” Quantum
`
`Group, Inc. v. Am. Sensor, Inc., No. 96 C 761, 1998 WL 766707, at *7 (N.D. Ill. Apr. 10, 1998);
`
`see also Rockwood Pigments NA, Inc. v. Axel J., LP, No. 01-1227, 2002 WL 31828179, at *4
`
`(Fed. Cir. Dec. 16, 2002) (marketing a product that can only be used in an infringing manner is
`
`an act of inducement); Applied Biosystems, Inc. v. Cruachem, Ltd., 772 F. Supp. 1458, 1466-67
`
`(D. Del. 1991) (“[A] cause of action for inducing patent infringement arises out of advertising.”).
`
`Moreover, these marketing and promotional activities are the acts of Emerson, not Micro
`
`Motion. Cahill, who manages the Emerson Process Experts blog and posts virtually all of the
`
`articles on it, identifies himself as an employee of EPM. See Jim Cahill, “About Jim Cahill,”
`
`9 See, e.g., Jim Cahill, “Understanding and Handling Entrained Gas Flow Measurement,”
`available
`at
`http://www.emersonprocessxperts.com/2013/01/understanding-and-handling-
`entrained-gas-flow-measurement/
`(Ex. H);
`Jim Cahill, “More Accurate Marine Fuel
`Measurement,” available at http://www.emersonprocessxperts.com/2013/10/more-accurate-
`marine-fuel-measurement/
`(Ex.
`I); Jim Cahill, “Truck Loading/Unloading with Micro
`available
`at
`Motion,”
`http://www.emersonprocessxperts.com/2013/10/truck-loading-
`unloading-with-micro-motion/ (Ex. J); Jim Cahill, “Impact of Reduce[d] Uncertainty of Flow
`in Development of Rocket Liquid Propellants Engines,” available at
`Measurement
`http://www.emersonprocessxperts.com/2013/10/impact-of-reduce-uncertainty-of-flow-
`measurement-in-development-of-rocket-liquid-propellants-engines/ (Ex. K).
`
`EAST\66332722.7
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`13
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`

`
`Case 6:12-cv-00799-JRG Document 92 Filed 12/11/13 Page 15 of 20 PageID #: 2484
`
`available at http://www.emersonprocessxperts.com/about-jim-cahill/ (Ex. B); LinkedIn, “Jim
`
`Cahill,” available at http://www.linkedin.com/in/jimcahill (Ex. C). As discussed above, EPM
`
`appears to be an unincorporated subdivision of Emerson, not a distinct legal entity. See supra
`
`Part I.B. In addition, the Emerson Process Experts blog covers products from multiple Emerson
`
`subsidiaries, not just Micro Motion. See supra note 2. Micro Motion also has its own blog
`
`specifically devoted to its products. See Micro Motion Online Community, “Browse Blogs,”
`
`available at http://community.micromotion.com/browse_blogs.php (Ex. D). It can reasonably be
`
`inferred from these facts that the Emerson Process Experts blog is run by Emerson, not Micro
`
`Motion. See Checkpoint Sys., 412 F.3d at 1338 (on summary judgment, all inferences must be
`
`drawn in the non-movant’s favor). Similarly, Connor, who posted the video on Emerson
`
`Exchange 365, identifies himself as an employee of EPM or Emerson. See Emerson Exch. 365,
`
`“Video
`
`on
`
`New
`
`Mass
`
`Flow
`
`and
`
`Density
`
`Meters,”
`
`available
`
`at
`
`http://community.emerson.com/process/emerson-exchange/b/weblog/archive/2013/10/03/video-
`
`on-new-mass-flow-and-density-meters.aspx (Ex. L); LinkedIn, “Christopher Connor,” available
`
`at http://www.linkedin.com/pub/christopher-connor/1a/420/173 (Ex. M).
`
`C.
`
`Emerson Induces Infringement by Instructing Customers How to Use Micro
`Motion’s Flowmeters.
`
`Emerson offers classes to its customers covering topics such as “basic trouble shooting”
`
`and “best practices around installation and configuration, common misapplications, and sizing
`
`tips” for Micro Motion’s Coriolis flowmeters. See Listing of Sessions (Microsoft Excel .xls file)
`
`(rows
`
`407-08,
`
`414-15,
`
`583-84,
`
`703-04),
`
`available
`
`at
`
`http://www.emersonexchange.org/2013/agenda.asp (follow “listing of sessions” link) (Ex. N).
`
`The instructors for these classes are identified as EPM personnel, not Micro Motion personnel.
`
`See id. “[I]nstructing how to engage in an infringing use” is an act of inducement. See Metro-
`
`EAST\66332722.7
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`14
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`

`
`Case 6:12-cv-00799-JRG Document 92 Filed 12/11/13 Page 16 of 20 PageID #: 2485
`
`Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 936 (2005). Because the accused
`
`Coriolis flowmeters have no non-infringing uses, any instruction in their use necessarily
`
`encourages infringement.
`
`D.
`
`Emerson Induces Infringement by Repairing and Servicing the Micro
`Motion Flowmeters.
`
`Emerson provides repair and technical support services for Micro Motion Coriolis
`
`flowmeters. See Arias Decl. ¶ 9 (Ex. A). In fact, Micro Motion personnel only become involved
`
`in major repairs. Id. The “Service and Support” page of Micro Motion’s portion of the Emerson
`
`website also confirms that Emerson, not Micro Motion, provides repair services for Micro
`
`Motion products. The website states that “Emerson provides unparalleled service and support
`
`for all your Micro Motion Coriolis Flow Density and Viscosity instrument needs,” and the
`
`technician pictured on the page is wearing a shirt with EPM’s logo, not Micro Motion’s. See
`
`Emerson, “Micro Motion Service & Support,” available at http://www2.emersonprocess.com/en-
`
`US/brands/