Free Response - District Court of Federal Claims - federal

Case 1:96-cv-00166-EJD

Document 352

Filed 09/07/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) a Missouri corporation, ) ) ) Plaintiff ) ) v. ) ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) ZOLTEK CORPORATION,

Case No. 96-166 C

Chief Judge Edward J. Damich

ZOLTEK'S STATUS REPORT SUBMITTED IN RESPONSE TO THE COURT'S ORDER OF JULY 17, 2007

In accordance with the Court's Order of July 17, 2007, Plaintiff Zoltek Corporation ("Zoltek") respectfully submits this status report regarding Defendant's Motion for Summary Judgment of Obviousness, filed under seal on September 4, 2007. Having completed its initial review of Defendant's Motion for Summary Judgment That Claims 1-22 and 33-38 of Zoltek's U.S. Patent No. Re 34,162 Are Obvious, Zoltek respectfully requests that the Court defer consideration of any additional discovery Zoltek might require to respond to the defendant's motion. Instead, at the telephonic status conference scheduled for Wednesday, September 12, 2007 at 2:00 p.m. (EST), Zoltek would request the opportunity to discuss Defendant's present motion in light of Defendant's invocation of the state secret privilege, filed May 15, 2007 (Docket #339). Zoltek will be prepared to discuss the substantial equitable questions raised by Defendant's present motion in light of the previously filed invocation of the state secret privilege, and will include, among other items, the effect such

Case 1:96-cv-00166-EJD

Document 352

Filed 09/07/2007

Page 2 of 3

invocation has on Zoltek's ability to defend against the Government's motion. The discussion will include, among other facts, the letter dated August 6, 1987 from George Rodgers at Northrop Corporation's Advance System Division ("Northrop") to Jerry Fleming, president of Stackpole Fibers Company, the predecessor in interest to Zoltek's `162 patent-in-suit. (Ex. 1)1

Respectfully submitted,

Date: September 7, 2007

By: /s / Dean A. Monco Dean A. Monco John S. Mortimer Wood Phillips 500 W. Madison Street Suite 3800 Chicago, IL 60661 Attorneys for Zoltek Corporation

Submitted by Stackpole Fibers Company to the U.S. Patent and Trademark Office during prosecution of Zoltek's U.S. Patent No. 4,728,395, the parent of the `162 patentin-suit. 2

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Case 1:96-cv-00166-EJD

Document 352

Filed 09/07/2007

Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing documents entitled ZOLTEK'S STATUS REPORT SUBMITTED IN RESPONSE TO THE COURT'S ORDER OF JULY 17, 2007 was filed electronically on this 7th day of September, 2007, which provides for electronic service to the following:

Gary L. Hausken, Esq. United States Department of Justice Commercial Litigation Branch ­ Civil Division 1100 L Street, N.W. Room 11114 Washington, D.C. 20005

/s/ Dean A. Monco Dean A. Monco WOOD, PHILLIPS, KATZ CLARK & MORTIMER 500 West Madison Street Suite 3800 Chicago, Illinois 60661 Telephone: (312) 876-1800 Fax: (312) 876-2020

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