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Gateway’s Reply Brief in Support of Its Motion for
Summary Judgment of No Willful Infringement
Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
Bryan W. Farney (pro hac vice)
Steven R. Daniels (SBN 235398)
Jeffrey B. Plies (pro hac vice)
DECHERT LLP
300 West 6th Street, Suite 1850
Austin, Texas 78701
Telephone: (512) 394-3000
Facsimile: (512) 394-3001
David J. Zubkoff (SBN 149488)
SELTZER CAPLAN McMAHON VITEK
750 “B” Street, Suite 2100
San Diego, CA 92101
Telephone: (619) 685-3003
Facsimile: (619) 685-3100
Attorneys for Defendants and Counterclaimants,
GATEWAY, INC., GATEWAY COUNTRY STORES LLC,
GATEWAY COMPANIES, INC., GATEWAY MANUFACTURING
LLC, AND COWABUNGA ENTERPRISES, INC
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
LUCENT TECHNOLOGIES INC.
Plaintiff and Counter-Defendant,
v.
GATEWAY, INC., GATEWAY COUNTRY
STORES LLC, GATEWAY COMPANIES,
INC., GATEWAY MANUFACTURING LLC
and COWABUNGA ENTERPRISES, INC.
Defendants and Counter-Claimants,
and
MICROSOFT CORPORATION
Intervenor and Counter-Claimant.
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AND CONSOLIDATED CASES ) )
Case No. 02-CV-2060 B (CAB)
consolidated with
Case No. 03-CV-699 B (CAB)
Case No. 03-CV-1108 B (CAB)
GATEWAY’S REPLY BRIEF IN
SUPPORT OF ITS MOTION FOR
PARTIAL SUMMARY JUDGMENT OF
NO WILLFUL INFRINGEMENT OF
THE ASSERTED CLAIMS OF U.S.
PATENT NOS. 4,439,759 (FLEMING);
4,958,226 (HASKELL); 4,383,272
(NETRAVALI) AND 4,763,356 (DAY)
Date: October 19, 2007
Time: 1:30 p.m.
Courtroom: 13, 5th Floor
Judge: Judge Marilyn L. Huff
Case 3:07-cv-02000-H-CAB Document 17 Filed 10/19/2007 Page 1 of 11
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Gateway’s Reply Brief in Support of Its Motion for
Summary Judgment of No Willful Infringement
1
Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
I. INTRODUCTION
Lucent has dropped its allegations of willful infringement with respect to the Fleming
‘759 and Agulnick ‘295 patents. Lucent. Opp. Brf. at 1, n.1. Thus, the Court should enter
partial summary judgment in Gateway’s favor with respect to at least these two patents. With
respect to the Day ‘356 patent and the two video patents (Haskell ‘226 and Netravali ‘272),
Lucent fails to present evidence upon which a reasonable jury could conclude, let alone by clear
and convincing evidence, that there was, as mandated by Seagate: (1) an objectively high
likelihood of infringement of a valid patent; and (2) Gateway knew or should have known of
such an objectively high risk.1
II. LUCENT CANNOT PROVE THAT GATEWAY’S ACTIONS WITH RESPECT
TO THE VIDEO PATENTS HAVE BEEN “OBJECTIVELY RECKLESS”
Far from being reckless, Gateway’s actions with respect to Lucent’s infringement charges
were reasonable and responsible. First, Gateway met with Lucent several times to discuss the
asserted video patents. D.I. 396, Exh. 15, (Walker Tr.) at 31:4-15, 42:17-43:24. Second, in spite
of Lucent’s “failure to provide a precise reading of the patent on particular products,” Gateway
used internal engineers to assess Lucent’s infringement contentions. Id. at 65:24-66:8, 31:16-22,
51:16-52:19, 67:3-8. Third, Gateway contacted its suppliers in order to have them perform an
infringement assessment as well. Id. at 53:14-54:17, 81:1-13. Fourth, Gateway obtained outside
counsel to evaluate the alleged infringement. Id. at 50:14-22. Fifth, after having its internal
engineers, outside counsel and suppliers evaluate these patents, Gateway presented to Lucent an
analysis of why it did not infringe. Id. at 62:1-63:2; 73:7-74:20; 74:25-75:4.2 In response to
1 Gateway joins the motions and briefing submitted by co-defendants Dell and Microsoft on the
issue of non-willfulness.
2 Lucent asserts that Gateway’s former in-house counsel Mark Walker has allegedly admitted
that Gateway “likely did not undertake any independent non-infringement analysis.” Luc. Opp.
Brf. at 8:28-9:2. However, Mr. Walker was simply indicating that he personally did not perform
the analysis. See D.I. 396, Exh. 15, (Walker Tr.) at 50:14-22. As set forth above, there is no
dispute that Gateway did retain outside counsel, consult with its suppliers, and consult with its
own engineers to evaluate Lucent’s patent claims. Consulting its suppliers and outside counsel
was entirely reasonable in view of the fact that the accused components were not developed by
Gateway. In any event, Lucent does not dispute the central points that Gateway did in fact have
a non-infringement analysis prepared and that this analysis was presented to Lucent.
Case 3:07-cv-02000-H-CAB Document 17 Filed 10/19/2007 Page 2 of 11
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Gateway’s Reply Brief in Support of Its Motion for
Summary Judgment of No Willful Infringement
2
Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
Gateway’s presentation of this non-infringement analysis, it is undisputed that Lucent offered no
counter argument or rebuttal to Gateway’s non-infringement points. Id. at 111:5-20. As a result,
Gateway reasonably believed that its arguments had persuaded Lucent that Gateway did not
infringe the video patents. Id.
The foregoing facts clearly demonstrate that instead of being reckless, cavalier, and
dismissive of Lucent’s allegations, Gateway undertook a serious and careful assessment of
Lucent’s charges and engaged Lucent in a substantive dialog with respect to the two video
patents (among other patents). Further, Gateway developed and presented particular non-
infringement arguments to Lucent, which Lucent failed to rebut. Under these circumstances, it
cannot be said that Gateway clearly and convincingly acted with reckless disregard for Lucent’s
rights, and no reasonable jury could find otherwise. The few points raised by Lucent’s opposition
brief are addressed below with respect to the two prongs of the Seagate willfulness inquiry.
A. Lucent Does Not Provide Any Evidence That There Was An Objectively
High Likelihood Of Infringement
Under the first prong of the Seagate analysis, Lucent makes several arguments claiming
that Gateway’s actions posed an objectively high likelihood of infringement. However, Lucent’s
arguments simply fail to raise a genuine issue of material fact for the reasons set forth below.
Lucent first cites a declaration from its technical expert Bernd Girod, which Lucent
characterizes as demonstrating that “each and every one of [Defendants’] non-infringement
theories is meritless.” Luc. Opp. Br. at 4:12-16. Contrary to Lucent, however, the Girod
Declaration merely sets forth his basic infringement opinions and fails to opine, conclude, or
explain how the Defendant’s non-infringement arguments are “meritless” or why there is no
close question on the issues of infringement and validity. Indeed, Lucent fails to provide a
pinpoint cite to any such testimony within the 77 page declaration. Id. To avoid summary
judgment on the present motion, Lucent must come forward with evidence that the infringement
question is not close, not simply provide some evidence of infringement. Both Lucent and its
expert also fail to address patent validity and provide no response to Gateway’s argument in its
opening brief that the Court has already found that Dr. Jaswant Jain’s prior work invalidates the
Case 3:07-cv-02000-H-CAB Document 17 Filed 10/19/2007 Page 3 of 11
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Gateway’s Reply Brief in Support of Its Motion for
Summary Judgment of No Willful Infringement
3
Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
Netravali ‘272 patent subject only to Gateway prevailing at trial on the narrow issue of when
prior art inventor Dr. Jaswant Jain first ran his prior art software program. D.I. 1948 at 4-5.3
Lucent’s second argument is that in 1996 an individual by the name of Kenneth
Rubenstein conducted an analysis of the two video patents and rendered his opinion that they
were “essential” to the MPEG-2 standard. Luc. Opp. Brf. at 4:18-20. This eleven year old
opinion from a third-party individual is both irrelevant and inadmissible as to whether MPEG-2
products infringe the two video patents. In order to make a finding of infringement, judicially
construed claims must be compared to the accused product. Texas Instruments, Inc. v. United
States International Trade Commission, 805 F.2d 1558, 1562 (Fed. Cir. 1986) (“Analysis of
patent infringement entails two inquiries: determination of the scope of the claim, as a matter of
law; and the factual finding of whether properly construed claims encompass the accused
structure.”). Here, Mr. Rubenstein did not have the benefit of the Court’s specific and detailed
claim construction orders for the two video patents, and thus his personal opinions on the
question of essentiality and/or infringement are simply irrelevant. D.I. 217 (Netravali ‘272); D.I.
311 (Haskell ‘226) (claim construction orders). Moreover, like the declaration of Lucent’s
technical expert, Mr. Rubenstein’s letter fails to opine that the issue is not close. Luc. Exh. 25
(Rubenstein Opinion). Also, like the Girod Declaration, Mr. Rubenstein’s letter fails to address
the question of validity at all. Finally, Lucent has failed to prove that Mr. Rubenstein knows the
first thing about video coding let alone that he is a qualified expert in the field.
Lucent’s third and final argument is that Gateway has somehow admitted that the two
video patents are “essential” to the MPEG-2 standard and thus, by inference, that products
implementing MPEG-2 necessarily infringe these patents. Luc. Opp. Brf. at 4:20-22. However,
Gateway has never made any such admission and emphatically denies that MPEG-2 infringes
either of the video patents. Indeed, Gateway has served upon Lucent detailed non-infringement
3 Please note that Gateway, in its opening brief, intended to refer to D.I. 1948 for the proposition
that “the court granted partial summary judgment in Gateway’s favor on several predicate issues
relating to the ‘272 patent being invalid.” Gateway’s Mot. for Partial Summary Judgment at 11.
However, Gateway inadvertently cited D.I. 1923, rather than D.I. 1948 in its initial briefing.
Gateway takes this opportunity to clarify this citation.
Case 3:07-cv-02000-H-CAB Document 17 Filed 10/19/2007 Page 4 of 11
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Gateway’s Reply Brief in Support of Its Motion for
Summary Judgment of No Willful Infringement
4
Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
contentions as well as a report by Gateway’s expert Edward Delp setting forth his non-
infringement opinions with respect to the video patents. Plies Decl.4 Exh. 1 (Gateway’s First
Supplemental Response to Lucent’s Interrogatory No. 21, December 29, 2005) at 15-17; Exh. 13
to Stadnick Decl. Opposing Summary Judgment Motions Concerning Video Coding Patents,
filed under seal on 04/20/07 (cover page and exemplary excerpts from Professor’ Delp’s non-
infringement report).
Lucent relies upon the Court’s recent order relating to the parties’ claims and defenses
concerning the formation of MPT, in which the order states that “the parties do not dispute the
two patents are essential to the MPEG-2 standard,” as somehow demonstrating that Gateway has
admitted that these patents are essential. Luc. Opp. Brf. at 4:21-22. The Court, however, was
merely acknowledging that for purposes of the defenses and counterclaims that were the subject
of the parties’ motions, the parties all assumed that the video patents were essential to MPEG-2.
Gateway, however, has never admitted that the patents are, in fact, essential to MPEG-2 only that
they are essential under Lucent’s theory of infringement. Indeed, in its Answer Gateway made
this point expressly clear when it pled that “the Haskell Patent and Netravali Patent are allegedly
MPEG-2 essential patents” See D.I. 2085 (Gateway’s Second Amended Answer and
Counterclaims to Plaintiffs’ Second Amended Complaint at ¶177 (emphasis added)). In short,
Lucent disingenuously tries to confuse the Court by falsely portraying Gateway’s defenses and
counterclaims pled in the alternative as being admissions.
B. Lucent Has No Evidence That Gateway Knew Or Should Have Known Of
An Objectively High Risk Of Infringement
In its opposition brief Lucent makes several arguments that Gateway was subjectively
aware of a high risk of infringement, which is the second prong of the Seagate analysis.
However, as detailed below, each of these arguments fails to show, much less by clear and
4 See attached Declaration of Jeffrey Plies In Support of Gateway’s Reply Brief in Support of its
Motion for Partial Summary Judgment of No Willful Infringement of the Asserted Claims of
U.S. Patent Nos. 4,439,759 (Fleming); 4,958,226 (Haskell); 4,383,272 (Netravali) and 4,763,356
(Day) [hereinafter “Plies Decl.”].
Case 3:07-cv-02000-H-CAB Document 17 Filed 10/19/2007 Page 5 of 11
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Gateway’s Reply Brief in Support of Its Motion for
Summary Judgment of No Willful Infringement
5
Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
convincing evidence, that Gateway had a subjective appreciation of an objectively high risk of
infringing valid video patents.
First, Lucent asserts that before this suit was filed, it provided notice of the patents to
Gateway, as well as an analysis of the alleged infringement. Luc. Opp. Brf. at 6:6-13. As a
result, Lucent claims that Gateway knew or should have known of an objectively high likelihood
of infringement. Id. However, simply identifying patents to Gateway is insufficient to show
subjective recklessness on the part of Gateway because in Seagate the Federal Circuit expressly
held that defendants no longer have an affirmative duty of due care. For Lucent to suggest that
the mere identification of patents to Gateway may trigger a finding of willfulness in effect
imposes upon Gateway a duty of due care, which is no longer the appropriate standard. In re
Seagate Technology, LLC, 2007 U.S. App. LEXIS 19768 * 22 (Fed. Cir. Aug. 20, 2007).
Lucent also alleges that it presented claim charts to Gateway concerning its infringement
assertions. Luc. Opp. Br. at 6:13-15. However, as explained previously, Gateway subsequently
prepared and presented to Lucent a non-infringement analysis. In turn, Lucent did not respond to
or rebut this analysis. D.I. 396, Exh. 15, (Walker Tr.) at 111:5-20. As a result, it appeared to
Gateway that it had convinced Lucent that it did not infringe the Netravali ‘272 and Haskell ‘226
patents. Id. Notably, in its opposition brief Lucent does not dispute that Gateway presented
these rebuttal non-infringement arguments to Lucent and that Lucent failed to respond to them.
Consequently, Lucent simply has no evidence to show that Gateway was actually aware of a high
risk of infringement and indeed the evidence clearly shows the opposite – that Gateway did not
believe there was a high risk of infringement in view of Lucent’s failure to respond to Gateway’s
non-infringement presentation. Id. at 111:5-20.
Second, Lucent argues that Gateway was aware of a high risk of infringement because of
the 1996 opinion by Kenneth Rubenstein that stated that the Haskell ‘226 and Netravali ‘272
were “essential” to the MPEG-2 standard. Lucent’s Opp. Brf. at 7. As noted above, the opinion
of an individual who did not have the benefit of this Court’s claim construction and who has not
even been shown to be an expert in the field is simply irrelevant and inadmissible with respect to
Case 3:07-cv-02000-H-CAB Document 17 Filed 10/19/2007 Page 6 of 11
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Gateway’s Reply Brief in Support of Its Motion for
Summary Judgment of No Willful Infringement
6
Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
the issues of essentiality and infringement. In any event, Lucent fails to cite any evidence that
Gateway was ever even aware of this opinion prior to litigation and thus it is irrelevant on this
basis as well. See Seagate, 2007 U.S. App. LEXIS 19768 at *28 (“[I]n ordinary circumstance,
willfulness will depend on an infringer’s prelitigation conduct.”).5
Third, Lucent claims that Gateway failed to design around the patents. Luc. Opp. Brf. at
9. This point is irrelevant because Lucent erroneously puts the cart before the horse. Logically,
Lucent must first establish that Gateway was aware of a high risk of infringement, which it
cannot, before the issue of design-arounds and other remedial efforts might become relevant to
the willfulness inquiry. Plainly, a party does not undertake remedial measures until after it
believes that there is a substantial risk of infringement. Here, as indicated above, Gateway
presented a non-infringement analysis to Lucent and in the wake of Lucent’s failure to respond
to Gateway’s points, Gateway understood that Lucent was no longer asserting infringement of
these particular patents. D.I. 396, Exh. 15, (Walker Tr.) at 111:5-20. Thus, there was no need to
design around these patents and any failure to do so does not show that Gateway knew that there
was a high risk of infringement of a valid patent. Stated differently, Gateway’s alleged failure to
pursue design-arounds is entirely consistent with Gateway’s position that it was not aware of a
high risk of infringing a valid patent.
III. LUCENT HAS NO EVIDENCE THAT GATEWAY WILLFULLY INFRINGED
THE DAY ‘356 PATENT
A. There Is No Evidence Of An Objectively High Risk Of Infringement
Lucent’s motions for summary judgment of infringement and non-invalidity of the Day
‘356 patent were denied by the Court. See D.I. 908 and 1367 (Lucent’s motions) and D.I. 1795
and 1813 (Court’s orders). In determining a motion for summary judgment, a court decides
whether “a reasonable jury could find for the non-movant.” Hutchins v. Zoll Med. Corp., 492
F.3d 1377, 1380 (Fed. Cir. 2007). Thus, the Court’s previous denials of Lucent’s motions for
5 To the extent that Lucent attempts to rely on Gateway’s post-suit conduct to establish
willfulness, Lucent is now precluded from doing so because it never moved for a preliminary
injunction. Seagate, 2007 U.S. App. LEXIS 19768 at *30 (“A patentee who does not attempt to
stop an accused infringer’s activities [by preliminary injunction] should not be allowed to accrue
enhanced damages based solely on the infringer’s post-filing conduct.”).
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Gateway’s Reply Brief in Support of Its Motion for
Summary Judgment of No Willful Infringement
7
Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
summary judgment establish that a reasonable jury could find in favor of Gateway on the issues
of non-infringement and validity.6 In other words, the Court found that Gateway’s non-
infringement and invalidity arguments are reasonable. Furthermore, Gateway has already
secured partial summary judgment in its favor that all but two of the asserted claims are not
infringed. D.I. 1240 at 7. In view of the foregoing, it cannot be said that Gateway’s defenses are
“meritless” or that the questions of infringement and validity are not at least close.7
Consequently, Lucent cannot show that there was an objectively “high risk” of infringement and
the first prong of the Seagate inquiry cannot be met.
B. There Is No Evidence That Gateway Knew Or Should Have Known Of A
High Risk Of Infringement
Nor can Lucent prove the second prong of the Seagate analysis – that Gateway was
subjectively aware of a high risk of infringement. First, Lucent has accused several products in
this litigation that it could have identified to Gateway prior to suit but never did. Second, Lucent
did not even end up accusing in this litigation certain products that it previously identified to
Gateway as infringing. Third, in the case of the single product that Lucent both identified to
Gateway before suit and presently accuses in this litigation, Lucent radically altered its
infringement theories after it filed suit. In view of Lucent’s own indecisiveness and lack of
clarity concerning what infringes the Day ’356 patent, there is simply no basis upon which
Gateway knew or should have known that there was a high risk of infringement.
6 Lucent’s argument about whether or not a patentee must file for summary judgment to obtain a
finding of willfulness is irrelevant to the analysis of the Day ‘356 patent because Lucent actually
did file for summary judgment of infringement and non-invalidity for the Day patent.
7 Lucent contends that Defendants’ view of the law would mean that willfulness would never be
tried to a jury. Luc. Opp. Brf. at 4:3-8. Lucent, however, fails to appreciate that the Federal
Circuit’s decision in Seagate was expressly intended to set a substantially higher bar to the
recovery of enhanced damages and Lucent fails to explain why this is an unreasonable outcome
in view of the Federal Circuit’s intent. See Seagate, 2007 U.S. App. LEXIS 19768 at *21-22
(noting that the Court is abandoning the earlier standard of due care and adopting the higher
threshold showing of recklessness). Moreover, Seagate has expressly predicated willfulness
findings on procedural requirements. Id. at *30-31 (requiring that a preliminary injunction be
sought in order to seek willfulness based on post-suit conduct). Accordingly, requiring a party to
seek or obtain summary judgment would be consistent with the Seagate decision.
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Summary Judgment of No Willful Infringement
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Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
In this litigation, Lucent has accused products that it never identified to Gateway before
suit and at the same time failed to accuse products that it did identify to Gateway as infringing
prior to suit. In particular, the only two products allegedly accused of infringement prior to suit
were Microsoft Outlook and Microsoft Explorer. Plies Decl. Exh. 3 (Indyk Dep.) at 37:3-21;
93:9-22; Plies Decl. Exh. 4 (Samuels Dep.) at 65:19-66:9; 100:15 – 101:2. However, Lucent is
presently accusing the following list of products of infringing the Day ‘356 patent: (1) Microsoft
Outlook, (2) Microsoft Money, (3) Microsoft Windows Mobile; and (4) Inuit Quicken. Exh. 2
(Lucent’s 7th Supp. Resp. to Interrog. No. 2, Attach. B) at 120. Thus, Microsoft Outlook is the
only product identified by Lucent prior to suit that is also now charged with infringement.
Notably, despite identifying Microsoft Explorer as an infringing product prior to suit, Lucent is
not presently accusing that product. Id.
Lucent has also radically altered its infringement theory with respect to Microsoft
Outlook, the only product that Lucent identified to Gateway before suit and that is also presently
accused of infringement. With respect to this product, Lucent’s own witness testified that before
suit Lucent identified the “email” and “address book” features of Outlook as allegedly infringing.
Plies Decl. Exh. 4 (Samuels Dep.) at 65:19-67:13; 100:15 – 101:2. In contrast, Lucent’s current
contentions make no mention of the “email” or “address book” features of Microsoft Outlook.
Instead, Lucent now accuses the “Appointment Creation form” feature of the Microsoft Outlook
product. Plies Decl. Exh. 2 (Lucent’s 7th Supp. Resp. to Interrog. No. 2, Attach. B) at 140-142.
There is simply no basis for finding that Gateway knew or should have known prior to
suit that there was a high probability of infringement when Lucent itself failed to identify most of
the accused products prior to litigation, failed to accuse products during litigation that it had
earlier identified, and changed its infringement theory with respect to the only product that was
both identified prior to suit and accused during litigation. If Lucent could not determine which
products infringed and why they infringed prior to suit, then it is unreasonable to expect that
Gateway knew or should have known that the presently accused products posed a “high risk” of
infringement.
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This is particularly true in view of the fact that Lucent’s infringement allegations with
respect to the Day ‘356 patent are directed to specific features of particular products. See Plies
Decl. Exh. 2 at (Lucent’s 7th Supp. Resp. to Interrog. No. 2, Attach. B) at 127-129 (accusing
Money’s “transaction form”); 133 (accusing Quicken’s “account register”); 140-142 (accusing
Outlook’s “Appointment Creation form”); and 144-145 (accusing Windows Mobile’s Calendar
appointment entry form). Thus, without an identification of both the particular product and the
specific accused feature by Lucent, there is no reason to believe that Gateway would or should
have known that there was a high risk of infringement. Plainly, Gateway could not have been
reckless simply for failing to be a “mind reader.” Further, Lucent cannot now rely on Gateway’s
post-suit conduct to establish willfulness because Lucent never filed for a preliminary injunction.
See Seagate, 2007 U.S. App. LEXIS 19768 at *30. In view of the foregoing, it is clear that no
reasonable jury could conclude by clear and convincing evidence that Gateway acted recklessly
in the face of a known high risk of infringement.8
To the extent that the Court determines that a fact issue exists with respect to whether
Lucent’s pre-suit identification of Microsoft Outlook might support a finding that Gateway’s
conduct was reckless, the Court should nevertheless grant partial summary judgment of no
willful infringement with respect to the accused Microsoft Money, Microsoft Windows Mobile,
and Intuit Quicken products. It is undisputed that Lucent never identified these three products to
Gateway prior to suit.9 Thus, there is no basis for the notion that Gateway acted recklessly prior
to suit with respect to these products which were neither identified nor accused by Lucent until
8 Lucent effectively concedes that it has no evidence that Gateway acted recklessly and instead
implores the court to deny Gateway’s motion under some sort of ill-defined estoppel-like theory.
Luc. Opp. Brf. at 11:15-19. In particular, Lucent complains about a couple of instructions not to
answer based on privilege grounds given by Gateway’s counsel to Gateway’s former in-house
counsel during his deposition. Id. Lucent fails to explain why these objections were improper
and has never moved to compel answers to these questions. Lucent cannot be heard now, a year
and a half after the deposition, to complain about answers it allegedly did not receive. In any
event, to avoid summary judgment, Lucent must come forward with credible evidence from
which a reasonable jury could find that Gateway willfully infringed under a clear and convincing
standard. Carping about discovery is not such affirmative evidence.
9 Lucent’s own witness confirms that Quicken and Money were not identified to Gateway before
this lawsuit was filed. Plies Decl. Exh. 4 (Samuels Dep.) at 25:9-14; 68:8-24.
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Gateway’s Reply Brief in Support of Its Motion for
Summary Judgment of No Willful Infringement
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Case Nos. 02-CV-2060 B (CAB)
03-CV-0699-B (CAB, and 03-CV-41108-B CAB)
after this lawsuit was commenced. Further, Lucent’s failure to move for a preliminary injunction
on these products prevents Lucent from asserting that Gateway’s post-suit conduct has been
willful. Seagate, 2007 U.S. App. LEXIS 19768 at *30. As a result, it would be inappropriate for
Lucent to recover enhanced damages for these three products assuming they are found to
infringe.
IV. CONCLUSION
In view of the foregoing, Gateway respectfully requests that the Court grant Gateway’s
instant motion for partial summary judgment of no willful infringement with respect to the
Netravali ‘272, Haskell ‘226, Day ‘356, Fleming ‘759, and Agulnick ‘295 patents.
Dated: October 12, 2007 DECHERT LLP
By: __/s/ Jeffrey B. Plies______
Jeffrey B. Plies
Attorneys For Defendants And Counterclaimants
GATEWAY, INC. et. al.
Case 3:07-cv-02000-H-CAB Document 17 Filed 10/19/2007 Page 11 of 11
