Free Motion to Amend Schedule - District Court of Federal Claims - federal

Case 1:05-cv-01209-LMB

Document 62

Filed 06/18/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 05-1209 C JENNINGS TRANSMISSION SERVICE OF GOLDSBORO, INC. Plaintiff, v. THE UNITED STATES, Defendant, and JASPER ENGINES & TRANSMISSIONS Third-Party Defendant, and READY BUILT DISTRIBUTORS, INC., Third-Party Defendant. _______________________________________________________ JOINT MOTION TO MODIFY EXPERT DISCOVERY SCHEDULE _______________________________________________________ In accordance with RCFC 16(b), the parties jointly move the Court to modify the Special Procedures Order. [D.28.] Specifically, the parties seek to amend the expert discovery schedule such that the period of expert discovery shall commence after the Court's

Case 1:05-cv-01209-LMB

Document 62

Filed 06/18/2007

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determination of claim construction. As prescribed in the Special Procedures Order, fact discovery closes June 29, 2007 and expert discovery is set to conclude on July 30, 2007 with expert reports due on August 20 and 30. [See id., ¶ 3(e).] In support of this motion, the parties offer the following: 1. The parties will utilize technical experts to opine on both

infringement and invalidity issues of this case. 2. Infringement and invalidity will be based on the claims at

issue in U.S. Patent No. 6,085,609. There are numerous claim terms in dispute. [Compare D.38 with D.40, D.41, D.43.] The Court, as part of its claim construction determination, will decide the meaning of the disputed terms and, in effect, the scope of the claims. To date, the Court has not rendered its claim construction determination. 3. It will be difficult, if not impossible, for the experts to opine

on infringement and invalidity without the benefit of the Court's claim construction. In the absence of the Court's claim construction, the experts will be left to speculate as to the meaning and scope of the claim terms in dispute. This will make it difficult for the experts to prepare succinct and easy to understand expert reports.

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Case 1:05-cv-01209-LMB

Document 62

Filed 06/18/2007

Page 3 of 3

The parties move the Court to hold expert discovery and expert reports in abeyance until the Court has considered the parties' claim construction briefs, heard their arguments, and rendered a decision as to the construction of the disputed claim terms. The parties suggest that they would provide a proposed expert discovery schedule within fourteen days of receiving the Court's claim construction order. This motion is made in good faith without purpose of causing undue delay. Respectfully submitted, this the 18th day of June, 2007.

Attorneys for Plaintiff By: /s/ Larry L. Coats Larry L. Coats N.C. State Bar No. 5,547 Anthony J. Biller N.C. State Bar No. 24,117 1400 Crescent Green Suite 300 Cary, NC 27511 Attorney for Def. Jasper By: /s/ James M. Hinshaw James M. Hinshaw, Esq. Bingham McHale LLP 2700 Market Tower 10 West Market Street Indianapolis, IN 46204

Attorney for Def. United States By: /s/ Ken B. Barrett Ken B. Barrett, Esq. Commercial Lit. Branch Civil Division U.S. Department of Justice 950 Pennsylvania Ave., NW Washington, DC 20530 Attorney for Def. Ready Built By: /s/ James S. Ward James S. Ward Ward & Wilson, LLC 2100 Southbridge Parkway Suite 580 Birmingham, AL 35209

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