Free Declaration - District Court of Delaware - Delaware

Case 1:05-cv-00889-SLR

Document 6

Filed 01/06/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE PADCOM, INC., Plaintiff, v. NETMOTION WIRELESS, INC., Defendant. C.A. No. 05-889-SLR

DECLARATION OF KATHERINE KELLY LUTTON IN SUPPORT OF DEFENDANT NETMOTION WIRELESS, INC.'S MOTION TO DISMISS THE DECLARATORY JUDGMENT COMPLAINT OF PADCOM, INC. FOR LACK OF JURISDICTION PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)1 AND 12(h)(3) I, Katherine Kelly Lutton, declare as follows: 1. I am a principal of Fish & Richardson P.C., counsel of record in this

action for Defendant NetMotion Wireless, Inc. I am a member of the Bar of the State of California and of this Court. I have personal knowledge of the matters stated in this declaration and would testify truthfully to them if called upon to do so. 2. In a January 4, 2005 call with Mr. Michael Fink of Greenblum and

Bernstein, counsel for Padcom, I asked Mr. Fink to clarify the bases for declaratory judgment jurisdiction. Mr. Fink responded by saying that "the complaint speaks for itself." He stated that if I did not understand the complaint, he should not have to explain it to me. He also stated that the only way he would dismiss the complaint was if NetMotion was willing to enter into a covenant not to sue. 3. NetMotion did not assert any of its patents in Padcom Inc. v. NetMotion

Wireless, et al., C.A. No. 03-983 (D. Del. 2003) ("Padcom I") or the related litigation. 4. Attached hereto as Exhibits A-O are true and correct copies of Padcom's

December 27, 2005 press release, or portions thereof, as reported in the media.

Case 1:05-cv-00889-SLR

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Filed 01/06/2006

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Case 1:05-cv-00889-SLR

Document 6

Filed 01/06/2006

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CERTIFICATE OF SERVICE I hereby certify that on January 6, 2006, I electronically filed the DECLARATION OF KATHERINE KELLY LUTTON IN SUPPORT OF DEFENDANT NETMOTION WIRELESS, INC.'S MOTION TO DISMISS THE DECLARATORY JUDGMENT COMPLAINT OF PADCOM, INC. FOR LACK OF JURISDICTION PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)1 AND 12(h)(3) with the Clerk of Court using CM/ECF which will send notification of such filing(s) to the following Delaware counsel. In addition the filing will also be sent via hand delivery: Josy W. Ingersoll Adam W. Poff Young Conaway Stargatt & Taylor, LLP The Brandywine Building, 17th Floor 1000 West Street P.O. Box 391 Wilmington, DE 19899-0391 I hereby certify that on January 6, 2006, I have mailed by United States Postal Service, the document(s) to the following non-registered participants: Jill M. Browning Greenblum & Bernstein, P.L.C. 1950 Roland Clarke Place Reston, VA 20191-1411 /s/ William J. Marsden, Jr. William J. Marsden, Jr.