`
`
`
`Juliette P. White, USB #9616
`PARSONS BEHLE & LATIMER
`201 South Main Street, Suite 1800
`Salt Lake City, Utah 84111
`Telephone: 801.532.1234
`Facsimile: 801.536.6111
`JWhite@parsonsbehle.com
`ecf@parsonsbehle.com
`
`Attorney for Plaintiffs
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF UTAH
`
`PLAINTIFFS’ NOTICE OF
`CORRECTIONS TO FOOTNOTES
`IN PLAINTIFFS’ OPENING
`MARKMAN BRIEF
`Case No. 2:21-cv-00283-TS-DAO
`The Honorable Ted Stewart
`Magistrate Judge Daphne A. Oberg
`
`
`EAGLE VIEW TECHNOLOGIES
`INC., PICTOMETRY
`INTERNATIONAL CORP.,
`Plaintiffs,
`vs.
`NEARMAP US, INC.,
`Defendant.
`
`
`
`
`Plaintiffs Eagle View Technologies Inc. and Pictometry International Corp. (collectively
`
`“EagleView”) hereby provide notice of corrections to footnotes 2 and 4 in their Opening Markman
`
`Brief (Dkt. 245), as explained below.
`
`Footnote 2 on page 5 of Dkt. 245 reads: “Each of the non-limiting preambles of the ’152
`
`patent refers to the generation of a roof estimate report, as well.”
`
`As corrected, footnote 2 should read: “Each of the limiting preambles of the ’152 patent
`
`refers to the generation of a roof estimate report, as well.”
`
`
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 248 Filed 02/10/23 PageID.14107 Page 2 of 5
`
`
`
`Similarly, footnote 4 on page 7 of Dkt. 245 reads: “The ’152 patent only includes the phrase
`
`‘roof estimate report’ in its non-limiting preamble, and it is therefore not a limitation of the asserted
`
`claims. See Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1347 (Fed. Cir. 2012)
`
`(“This court has recognized that as a general rule preamble language is not treated as limiting.”);
`
`see also Arctic Cat Inc. v. GEP Power Prods., Inc., 919 F.3d 1320, 1327 (Fed. Cir. 2019);
`
`Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808–09 (Fed. Cir. 2002).”
`
`As corrected, footnote 4 should read: “The ’152 patent includes the phrase ‘roof estimate
`
`report’ in its preamble, which is limiting because it breathes life, meaning, and vitality into the
`
`claims. Deere & Co v. Bush Hog, LLC, 703 F.3d 1349, 1357 (Fed. Cir. 2012) (‘[A] preamble is
`
`limiting if it is necessary to give life, meaning, and vitality, to the claim.’) (internal quotations
`
`omitted).”
`
`These corrections are intended to reflect that the preambles of the ’152 patent are, in fact,
`
`limiting, rather than non-limiting, as EagleView explained previously in its Opposition to
`
`Defendant’s Motion to Dismiss Based on Unpatentability Under 35 U.S.C. § 101, (Dkt. 41) at p.
`
`11, n.7.
`
`
`
`
`
`2
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 248 Filed 02/10/23 PageID.14108 Page 3 of 5
`
`
`
`Dated: February 10, 2023
`
`
`
`
`
`
`
` Respectfully submitted,
`
`/s/ Juliette P. White
`
`
`
`L. Kieran Kieckhefer
`SHEARMAN & STERLING LLP
`535 Mission Street, 25th Floor
`San Francisco, CA 94105
`Telephone: 415.616.1100
`Fax: 415.616.1339
`kieran.kieckhefer@shearman.com
`
`Matthew G. Berkowitz
`Patrick Colsher
`Lillian J. Mao
`Yue (Joy) Wang
`SHEARMAN & STERLING LLP
`1460 El Camino Real, 2nd Floor
`Menlo Park, CA 94025
`Telephone: 650.838.3600
`Fax: 650.838.3699
`matthew.berkowitz@shearman.com
`patrick.colsher@shearman.com
`lillian.mao@shearman.com
`joy.wang@shearman.com
`
`Eric S. Lucas
`SHEARMAN & STERLING LLP
`599 Lexington Ave.
`New York, NY 10022
`Telephone: 212.838.4955
`Fax: 646.848.4955
`eric.lucas@shearman.com
`
`Juliette P. White
`Parsons Behle & Latimer
`201 South Main Street, Suite 1800
`Salt Lake City, Utah 84111
`Telephone: 801.532.1234
`Fax: 801.536.6111
`JWhite@parsonsbehle.com
`ecf@parsonsbehle.com
`
`
`
`1
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 248 Filed 02/10/23 PageID.14109 Page 4 of 5
`
`
`
`
`
`
`
`Attorneys for Plaintiffs Eagle View
`Technologies, Inc. and Pictometry
`International Corp.
`
`
`
`2
`
`
`
`Case 2:21-cv-00283-TS-DAO Document 248 Filed 02/10/23 PageID.14110 Page 5 of 5
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that, on the 10th day of February 2023, I caused to be electronically filed
`
`and served the foregoing PLAINTIFFS’ NOTICE OF CORRECTIONS TO FOOTNOTES IN
`
`PLAINTIFFS’ OPENING MARKMAN BRIEF with the Clerk of the Court using the Court’s
`
`electronic filing system, which sent notification of such filing to all attorneys listed on the
`
`docket.
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Juliette P. White
`Juliette P. White
`Attorney for Plaintiffs
`
`
`
`
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