IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

BMO HARRIS BANK NATIONAL 

ASSOCIATION, 

 Plaintiff, 

 v. 

POLLIN PATENT LICENSING, LLC and 

AUTOSCRIBE CORPORATION, 

 Defendants. 

Case No. 1:11-cv-7996 

Judge John F. Grady 

Magistrate Judge Morton Denlow 

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR 

COMBINED MOTIONS TO DISMISS CERTAIN CLAIMS FOR LACK 

OF SUBJECT MATTER JURISDICTION AND FOR A PROTECTIVE ORDER 

Defendants Autoscribe Corporation and Pollin Patent Licensing, LLC (collectively 

“Autoscribe”) respectfully move the Court to dismiss counts II-V and counts VII-X of Plaintiff 

BMO Harris Bank N.A.’s (“BMO”) Complaint in this matter for lack of subject matter 

jurisdiction. Autoscribe also moves the Court for a protective order precluding BMO from 

seeking the construction of eighty-nine (89) terms from five patents through the claim 

construction process. 

I. BACKGROUND 

 Autoscribe is the owner of five United States Patents: Nos. 7,117,171 (“the ‘171 Patent”), 

6,041,315 (“the ‘315 patent”), 5,966,698 (“the ‘698 patent”), 5,727,249 (“the ‘249 patent”) and 

5,504,677 (“the ‘677 patent”) (collectively, “the Autoscribe Patents”). The Autoscribe Patents 

generally relate to check by phone debt collection systems in which a payer may authorize 

payment from his or her checking account through a telephone communication with a live 

system operator. On July 5, 2011, Autoscribe’s non-litigation attorney sent a letter to the general 

counsel of Harris Bankcorp, Inc. regarding licensing the Autoscribe Patents. (“the July Letter) 

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(Ex. A, 6/5/11 Letter from R. Berman to P. Nobel). In response to the July Letter, BMO did not 

request additional information from Autoscribe or engage in any substantive discussions 

regarding the content of the July Letter or Autoscribe’s attempts to license one or more of its 

patents. Instead, on November 10, 2011, BMO filed a ten-count Complaint against Autoscribe, 

seeking declaratory judgments of non-infringement and invalidity of all five Autoscribe patents. 

[Dkt. No. 1]. On December 5, 2011, Autoscribe filed its Answer and single-count Counterclaim 

asserting infringement of just one of the Autoscribe Patents; namely, the ‘171 Patent. [Dkt. No. 

11].1 

Significantly, Autoscribe does not contend that BMO infringes the ‘315, ‘698, ‘249 or ‘677 

patents (collectively “the Non-Asserted Autoscribe Patents”). In fact, since the filing of this 

lawsuit, Autoscribe has repeatedly informed BMO that it has no intent to assert claims for 

infringement of the Non-Asserted Autoscribe Patents against BMO. And, even the attachment to 

the July Letter only specifies infringement of two claim of the ‘171 patent (Ex. A). 

Consequently, Autoscribe requested that BMO voluntarily dismiss its declaratory judgment 

claims against Autoscribe with respect to the Non-Asserted Autoscribe Patents without 

prejudice. (See, for example, Ex. B, 12/19/11 email from L. Kenneally to E. Dillingham, ¶5; Ex. 

C, 1/13/12 email from L. Kenneally to T. Cremen; Ex. D, 1/23/12 email from L. Kenneally to T. 

Cremen; Ex. E, 1/30/12 email from L. Kenneally to T. Cremen). Despite Autoscribe’s efforts, 

BMO is refusing to dismiss its claims involving the Non-Asserted Autoscribe Patents without 

prejudice. 

 1

 Incredibly, after alleging that all five Autoscribe’s patents were invalid and not 

infringed, BMO sought to dismiss Autoscribe’s sole counterclaim for infringement of the ‘171 

patent. That motion was denied. 

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II. COUNTS II –V (INFRINGEMENT) AND VII-X (INVALIDITY) OF BMO’S 

COMPLAINT INVOLVING THE NON-ASSERTED AUTOSCRIBE PATENTS 

SHOULD BE DISMISSED FOR LACK OF SUBJECT MATTER JURISDICTION 

A. Legal Standard 

The Declaratory Judgment Act provides that, "[i]n a case of actual controversy within its 

jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may 

declare the rights and other legal relations of any interested party seeking such declaration, 

whether or not further relief is or could be sought." 28 U.S.C. § 2201(a); MedImmune, Inc. v. 

Genentech, Inc., 549 U.S. 118, 127 (2007)(citations omitted) (noting that the phrase "case of 

actual controversy," as it appears in the Declaratory Judgment Act, refers to the types of cases 

that are justiciable under Article III).

In Medlmmune, the Supreme Court explained that, in determining whether a justiciable 

declaratory judgment action exists: 

[T]he question in each case is whether the facts alleged, under all the 

circumstances, show that there is a substantial controversy, between parties 

having adverse legal interests, of sufficient immediacy and reality to warrant the 

issuance of a declaratory judgment. 

MedImmune, 549 U.S. at 127 (citations omitted). Not only must there be an actual controversy 

between interested parties, but the “actual controversy must be extant at all stages of review, not 

merely at the time the complaint is filed.” Prieser v. Newkirk, 422 U.S. 395, 401 (1975). In 

applying the “all the circumstances” test to determine whether an action for a declaratory 

judgment of noninfringement or patent invalidity presents a justiciable Article III controversy, 

Courts rely on the Supreme Court's three-part framework to determine whether an action 

presents a justiciable Article III controversy. Caraco Pharm. Labs., Ltd. v. Forest Labs., Ltd., 

527 F.3d 1278, 1291 (Fed. Cir. 2008). Pursuant to that framework, an action is justiciable under 

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Article III only where (1) the plaintiff has standing, (2) the issues presented are ripe for judicial 

review, and (3) the case is not rendered moot at any stage of the litigation. Id. 

Notably, the burden is on the party claiming declaratory judgment jurisdiction to 

establish that such jurisdiction existed at the time the claim for declaratory relief was filed and 

that it has continued since. Benitec Australia, LTD v. Nucleonics, Inc., 495 F.3d 1340, 1344 

(Fed.Cir. 2007). If, during the course of an action, it appears that there is no longer an actual 

case or controversy because “a party’s legally cognizable interest in the litigation ceases to 

exist,” the “case becomes moot” and “must be dismissed for lack of jurisdiction. Evers v. Astrue, 

536 F.3d.651, 662 (7th Cir. 2008)(“mootness is a threshold jurisdictional question that insures 

that the court is faithful to the case or controversy limitation in Article III of the 

constitution.”)(citations omitted). 

At issue here is whether BMO has alleged a case of actual controversy sufficient to 

support jurisdiction over its declaratory judgment claims for non-infringement and invalidity of 

the Non-Asserted Autoscribe Patents, counts II-V and counts VII-X of BMO’s complaint. 

B. There Is No Case or Controversy Sufficient to Support 

BMO’s Claims Related to the Non-Asserted Autoscribe Patents 

 Autoscribe contends the BMO’s Complaint should be partially dismissed for lack of 

subject matter jurisdication because there is no actual case or controversy with respect to BMO’s 

claims for declaratory judgments of invalidity and non-infringement of the Non-Asserted 

Autoscribe Patents. As an initial matter, BMO’s Complaint does not even allege that Autoscribe 

ever accused it of infringing the Non-Asserted Autoscribe Patents. BMO is relying entirely on 

the July Letter (Ex. A) as the sole basis for subject matter jurisdication. It should be noted that 

upon receipt of the letter, BMO refused to discuss with Autoscribe the nature and/or scope of 

Autoscribe’s contentions regarding infringement by BMO. BMO never even asked Autoscribe 

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which of the Autoscribe patents it believed were infringed by BMO. Instead, without 

communicating to Autoscribe, BMO filed its ten-count Complaint in this matter. Notably, 

however, the July Letter itself demonstrates that there is no actual case or controversy with 

respect to the Non-Asserted Autoscribe Patents sufficient to give rise to jurisdiction here. 

First, the July Letter does not contend that BMO is infringing all of the Autoscribe 

patents. In fact, the July Letter states: “Autoscribe believes that you have used and are using a 

system which is covered by one or more of its issued U.S. Patents.” (Ex. A, at 1). The July 

Letter also included an attached infringement analysis describing how BMO was infringing only 

claims 6 and 12 of the ‘171 Patent. Tellingly, Autoscribe did not provide any infringement 

analysis to BMO regarding any of the Non-Asserted Autoscribe Patents. The only patent for 

which Autoscribe provided an infringement analysis was the ‘171 Patent – the same (and only) 

patent that Autoscribe’s Counterclaim alleges is infringed by BMO. 

In an attempt to further explain the scope of its contentions, the July Letter included a 

document titled “Autoscribe – Steps For Prompt Resolution,” which provided the following 

additional information to BMO: 

1. U.S Patent No. 7,117,171 generally applies to check by phone systems 

which generate electronic records which are processed for payment. 

2. U.S.Patent Nos. 6,041,315; 5,966,698; 5,727,249; and 5, 504,677 [i.e. the 

Non-Asserted Autoscribe Patents] generally apply to check by phone 

systems which generate physical drafts, which are processed for payment. 

3. If your system only generates electronic records, your patent attorney 

need only focus on the ‘171 Patent and its file history. 

(Ex. A, p. 3). 

During a January 23, 2012 telephone conversation regarding Autoscribe’s request that 

BMO dismiss without prejudice its claims related to the Non-Asserted Autoscribe Patents, 

counsel for BMO represented that BMO’s system only generates electronic drafts. Thus, 

according to the express language of the July Letter, under such circumstances BMO was clearly 

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directed to “only focus on the ‘171 Patent.” As such, there is no basis for declaratory judgment 

jurisdiction as there is no case of actual controversy with respect to the Non-Asserted Autoscribe 

Patents. 

Notwithstanding the fact that BMO purportedly only generates electronic drafts and 

therefore should only have focused on the ‘171 Patent, BMO’s proffered reason for refusing to 

dismiss its claims with respect to the Non-Asserted Autoscribe Patents without prejudice is 

insufficient to create jurisdication here. The sole explanation provided by BMO for its refusal to 

dismiss its claims is that BMO may later change its system to one that generates paper drafts, 

creating a possibility that Autoscribe could later sue BMO again on the Non-Asserted Autoscribe 

Patents. That is legally insufficient. 

The possibility that Autoscribe might sometime sue BMO for infringement of the NonAsserted Autoscribe Patents over some as of yet undeveloped system is too speculative to confer 

jurisdication. Under similar circumstances, Courts have found no case or controversy: Benitec 

Australia, LTD v. Nucleonics, Inc., 495 F.3d 1340, 1344 (Fed.Cir. 2007)(affirming dismissal of 

counterclaims seeking declarations of invalidity and unenforceability of the patent-in-suit for 

lack of justiciable controversy); Microsoft Corp. v. WebXchange, Inc., 2009 U.S. Dist. LEXIS 

103225, 7-8 (D. Del. Oct. 30, 2009)(granting motion to dismiss declaratory judgment claims 

seeking declarations that the patents-in-suit were not infringed and invalidity for lack of subject 

matter jurisdiction); Drew Chemical Co. v. Hercules, Inc., 407 F.2d 360, 362 (2d Cir. N.Y. 

1969)(affirming dismissal of declaratory judgment suit finding no “case of actual controversy” 

where declaratory judgment plaintiff’s basis for jurisdiction was a fear of being sued based on 

Defendants having sued other competitors in the field for infringement); Hartford National 

Bank & Trust Co. v. Henry L. Crowley & Co., 219 F.2d 568, 570-571 (3rd Cir. 1955)(dismissing 

part of complaint seeking a declaratory judgment and noting that the fear of one party that it 

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might sometime be sued for patent infringement was merely conjectural and not appropriate for 

declaratory relief); Research Electronics & Devices Co. v. Neptune Meter Co., 156 F. Supp. 484 

(S.D.N.Y.1957), aff'd per curiam, 264 F.2d 246 (2d Cir. 1959) (granting motion to strike 

portions of counterclaim of defendant seeking declaratory judgment that certain of plaintiff's 

non-asserted patents were invalid, on basis that there was no justiciable controversy). 

Not only is there no present intention to sue BMO for infringement of the Non-Asserted 

Autoscribe Patents, but all of the Autoscribe Patents will expire in October 2012. Accordingly, 

any fear that BMO has of being sued later for future infringement of a future system is negligible 

and as a practical matter non-existent. There is no actual controversy between the parties with 

respect to the Non-Asserted Autoscribe Patents sufficient to warrant declaratory judgment 

jurisdiction. Autoscribe has not accused BMO of infringing the Non-Asserted Autoscribe 

Patents. To the contrary, Autoscribe has repeatedly informed BMO that it does not intend to 

pursue claims for infringement of the Non-Asserted Autoscribe Patents against BMO. 

Moreover, based on counsel for BMO’s own statements, BMO’s system does not generate paper 

draft and thus, the only patent for which a justiciable controversy exists is the ‘171 Patent. 

Accordingly, BMO has not carried its burden of showing a controversy of “sufficient immediacy 

and reality” to support jurisdiction over its claims involving the Non-Asserted Autoscribe 

Patents. MedImmune, 127 S. Ct at 1771. 

Furthermore, the exclusion of any claim for infringement of the Non-Asserted Autoscribe 

Patents from Autoscribe’s Counterclaim demonstrates that Autoscribe does not presently intend 

to pursue infringement litigation against BMO with respect to those patents. See, e.g., K-Jack 

Engineering Co. v. Pete's Newsrack, Inc., 1978 U.S. Dist. LEXIS 17359, 3-4 (C.D. Cal. 

1978)(Plaintiffs filing of a lawsuit without alleging infringement of particular patent indicates 

that it has withdrawn earlier claim of infringement for that patent; Chubb Integrated Systems, 

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Ltd. v. National Bank of Washington, 1983 U.S. Dist. LEXIS 16504 (D.D.C. June 2, 

1983)(same). 

 Despite Autoscribe having informed BMO that it has no intention of suing BMO on the 

Non-Asserted Autoscribe Patents, BMO is refusing to dismiss its claims involving the NonAsserted Autoscribe Patents absent a covenant not to sue. Yet, Autoscribe has no obligation to 

covenant not to sue BMO on the Non-Asserted Autoscribe Patents: 

A patentee has no obligation to spend the time and money to test a 

competitors' product nor to make a definitive determination, at the time and 

place of the competitors' choosing, that it will never bring an infringement 

suit. And the patentee's silence does not alone make an infringement action or 

other interference with the plaintiff's business imminent. 

Prasco, LLC v. Medicis Pharm. Corp., 537 F.3d 1329, 1341 (Fed. Cir. 2008)(internal citations 

omitted)(emphasis added)(affirming dismissal of case for lack of subject matter jurisdication); 

See also, Microsoft Corp. v. WebXchange, Inc., 2009 U.S. Dist. LEXIS 103225, 7-8 (D. Del. 

Oct. 30, 2009); (same). Autoscribe is not required to covenant not to sue BMO and its refusal to 

do so is not sufficient to create an actual controversy. Aside from Autoscribe’s July Letter which 

expressly informed BMO that if its system only generated paper drafts (which it allegedly does) 

then it only needed to consider the ‘171 Patent, there is no action by Autoscribe sufficient to 

create an actual case of controversy with respect to the Non-Asserted Autoscribe Patents. In 

sum, regardless of infringement of any of the Non-Asserted Autoscribe Patents by BMO, all of 

Autoscribe’s claims of infringement will rise and fall on the ‘171 patent. 

III. A PROTECTIVE ORDER IS WARRANTED 

BMO is not only refusing to dismiss its declaratory judgment claims involving the NonAsserted Autoscribe Patents, but it now seeks to waste judicial resources by having this Court 

construe eighty-nine terms through the claim construction process. Autoscribe has requested 

dismissal of BMO’s declaratory judgment claims involving the Non-Asserted Autoscribe Patents 

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in order to streamline this case and prevent an unnecessary waste of judicial time and resources. 

BMO’s latest proposal regarding claim construction highlights the need for dismissal of the NonAsserted Autoscribe Patents. (Ex. F). It appears that BMO intends to ask this Court to construe 

eighty-nine terms of essentially every claim of every Autoscribe Patent, even though BMO has 

only been charged with infringement of claims 6 and 12 of the ‘171 patent. Although Autoscribe 

contends that BMO’s claims with respect to the Non-Asserted Autoscribe Patents should be 

dismissed for lack of subject matter jurisdication, at a minimum, Autoscribe seeks a protective 

order preventing BMO from seeking construction of more than ten claim terms of all of the 

Autoscribe Patents, should BMO’s claims involving the Non-Asserted Autoscribe Patents not be 

dismissed. 

A. Legal Standard 

Under Rule 26(c)(1), “any person from whom discovery is sought may move for a 

protective order in the court where the action is pending....” On such motion, "[t]he court may, 

for good cause, issue an order to protect a party or person from annoyance, embarrassment, 

oppression, or undue burden or expense, including one or more of the following: 

(B) specifying terms, including time and place, for the disclosure or discovery; or 

(C) prescribing a discovery method other than the one selected by the party seeking 

discovery..." See Fed. R. Civ. P. 26(c)(1). Under Rule 26, courts are authorized to limit 

discovery to that which is proper and warranted under the circumstances of the case. 

B. BMO Should be precluded from seeking construction of eighty-nine claim 

terms by this Court 

In preparation for the pre-Markman conference in this matter, which is currently set for 

May 9, 2012, the parties agreed to exchange certain information in order to identify the parties’ 

positions regarding claim construction. Specifically, the parties agreed to identify the claim 

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terms that they believe require construction by the Court on or before February 3, 2012. And, 

the parties’ are to provide proposed constructions for each identified claim term to be construed 

on February 15, 2012. On February 3, 2012, BMO served its disclosure of proposed terms to be 

construed by this Court, identifying almost ninety terms for construction by the Court. (Ex. F). 

This is precisely the reason for the Northern District of Illinois Local Patent Rule 4.1 (b), which 

limits the number of terms to be construed to no more than ten (10) terms. The comments to 

Local Patent Rule 4.1 provide: 

In some cases, the parties may dispute the construction of more than ten terms. 

But because construction of outcome-determinative or otherwise significant claim 

terms may lead to settlement or entry of summary judgment, in the majority of 

cases the need to construe other claim terms of lesser importance may be 

obviated. The limitation to ten claim terms to be presented for construction is 

intended to require the parties to focus upon outcome-determinative or 

otherwise significant disputes.

See, Comments, LPR 4.1 (emphasis added). Here, BMO seeks to construe terms that not only 

have nothing to do with the outcome of this case, but also terms which are found in claims and 

patents that are not being asserted are/or not even at issue. 

There is no reason for this Court to have to construe eighty-nine claim terms – regardless 

of whether or not BMO’s declaratory judgment claims with respect to the Non-Asserted 

Autoscribe Patents are ultimately dismissed. O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 

521 F.3d 1351, 1362 (Fed. Cir. 2008) (recognizing that “district courts are not (and should not 

be) required to construe every limitation present in a patent’s asserted claims.”); U.S. Surgical 

Corp. v. Ethicon, Inc., 103 F.3d 1554, 1568 (Fed. Cir. 1997) (“Claim construction is a matter of 

resolution of disputed meanings and technical scope, to clarify and when necessary to explain 

what the patentee covered by the claims, for use in the determination of infringement. It is not an 

obligatory exercise in redundancy.”). 

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Requiring the parties to engage in extensive briefing regarding the proper construction of 

eighty-nine claim terms from five patents (particularly when there appears to be no actual case or 

controversy with respect four of those patents), would result in enormous burden and expense to 

both parties. Furthermore, any claim construction hearing involving argument related to the 

proper construction that many terms would result in a tremendous waste of judicial time and 

resources. There is just no legitimate reason for this kind of abuse of the claim construction 

process. 

Notably, in other cases, no party has sought to interpret anywhere near as many claim 

terms. In Autoscribe Corporation et al. v. Wells Fargo Bank N.A, Civil Action No. 10-cv-202 

(S.D. Ia.), only seven terms of three claims of two patents were up for consideration (Ex. G). A 

similar number of terms were raised in Autoscribe’s prior lawsuit against Defendants Allstate, 

U.S. Cellular, Capital One and F.I.A. Card Services before Judge Hibbler, Autoscribe 

Corporation et al. v. Allstate Insurance Company et al., Civil Action No. 10-cv-7420 (N.D. Ill.). 

And, those prior actions were resolved through settlement and license agreements. 

 Significantly, if the Court is inclined to dismiss BMO’s claims related to the NonAsserted Autoscribe Patents (counts II-V and VII-X of BMO’s Complaint) – forty of the terms 

that BMO proposes require construction by the Court would be eliminated, bringing the number 

of terms to a still excessive fifty-one (51) claim terms of the ‘171 Patent. Yet, even the 

construction of fifty-one terms is outrageous. BMO is essentially asking the Court to construe 

terms from every claim of all five Autoscribe patents, notwithstanding the fact that Autoscribe 

has only asserted infringement of two claims of the ‘171 patent (claims 6 and 12 of the ‘171 

Patent). The construction of terms from claims that Autoscribe has not asserted against BMO 

would result in an advisory opinion and would be an abuse of the judicial process. As such, 

Autoscribe seeks a protective order preventing BMO from seeking the construction of eightyCase: 1:11-cv-07996 Document #: 30 Filed: 02/10/12 Page 11 of 13 PageID #:118
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nine claim terms. Autoscribe respectfully requests that the court limit the number of terms to be 

construed to only ten terms from claims 6 and 12 of the ‘171 Patent only. 

IV. CONCLUSION 

For the reasons set forth above and in Autoscribe’s Memorandum In Support of 

Defendants’ Combined Motion To Dismiss For Lack of Subject Matter Jurisdiction and For A 

Protective Order, Autoscribe respectfully requests that the Court: 1) dismiss counts II-V and 

counts VII-X of BMO’s Complaint for lack of subject matter jurisdiction, and 2) enter a 

protective order limiting the number of claim terms to be construed by the Court to ten terms 

from claims 6 and 12 of the ‘171 Patent only. 

 Respectfully submitted, 

/s/Laura A. Kenneally 

Raymond P. Niro 

Robert A. Vitale, Jr. 

Patrick F. Solon 

Laura A. Kenneally 

Gabriel I. Opatken 

NIRO, HALLER & NIRO 

181 W. Madison, Suite 4600 

Chicago, IL 60602 

(312) 236-0733 

Fax: (312) 236-3137 

RNiro@nshn.com; Vitale@nshn.com; 

Solon@nshn.com; LKenneally@nshn.com; 

GOpatken@nshn.com

Attorneys for Defendants

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on February 10, 2012 the foregoing 

DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR 

COMBINED MOTIONS TO DISMISS CERTAIN CLAIMS FOR LACK 

OF SUBJECT MATTER JURISDICTION AND FOR A PROTECTIVE ORDER 

was filed with the Clerk of Court using the CM/ECF system, which will then send a notification 

of such filing to the following counsel of record. 

Emily Newhouse Dillingham 

PAUL HASTINGS LLP 

191 N. Wacker Drive, 13th Floor 

Chicago, IL 60606 

emilydillingham@paulhastings.com

Robert M. Masters 

Timothy P. Cremen 

Lisa Y. Leung 

PAUL HASTINGS LLP 

875 15th Street, N.W. 

Washington, DC 20005 

robmasters@paulhastings.com

timothycremen@paulhastings.com

lisaleung@paulhastings.com

Bob Chen 

PAUL HASTINGS LLP 

4747 Executive Drive 

Twelfth Floor 

San Diego, CA 92121 

bobchen@paulhastings.com

I certify that all parties in this case are represented by counsel who are CM/ECF participants. 

 

/s/Laura A. Kenneally 

Attorneys for Defendants 

NIRO, HALLER & NIRO 

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