Free Reply Brief - District Court of Delaware - Delaware

Case 1 :04-cv-01371-JJF Document 126 Filed 10/28/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
POWER INTEGRATIONS, INC., )
Plaintiff, )
v. ) C.A. No. 04-1371-HF
FAIRCHILD SEMICONDUCTOR )
INTERNATIONAL, INC., and FAIRCHILD )
SEMICONDUCTOR CORPORATION, )
Defendants. )
DEFENDANTS’ REPLY IN SUPPORT OF ITS
EXPEDITED MOTION T0 AMEND THE SCHEDULE
In its Opposition (D.I. 123), Power Integrations concedes that it failed to provide
Fairchild with fact discovery, including the deposition of Balu Balakrishnan, that may be
relevant to Fairchi1d’s expert reports. Power Integrations, however, refuses to extend the case
schedule to remedy its failure and instead insists that Fairchild submit incomplete expert reports
on October 31, 2005.
Given that initial expert reports are due October 31, 2005, Fairchild respectfully requests
a hearing on either October 28 or 31, 2005. Alternatively, Fairchild respectfully requests that the
Court stay the exchange of expert reports so that Your Honor can consider this issue.
I. The Court Has Inherent Power to Amend the Schedule.
Although Power Integrations concedes that the Court has the inherent power to amend its
schedule. Opposition at 4. Indeed, in its Scheduling Order, the Court specifically noted that
either party could move to amend the schedule. See Rule 16 Scheduling Order (D.I. 17), 11 10.
Power Integrations’ inability to produce Mr. Balakrishnan for deposition necessitates such an
amendment.
II. Mr. Balakrishnan’s Testimony Is Directly Relevant to Fairchild’s Expert Reports.
Although Power Integrations chastises Fairchild for assuming that Mr. Balakrishnan will

Case 1:04—cv—01371-JJF Document 126 Filed 10/28/2005 Page 2 of 4
have testimony relevant to the non-infringement and invalidity of the Power Integrations patents,
Mr. Balakrishnan is the only technical fact witnesses that Power Integrations will call at trial.
Thus, Power Integrations must believe that Mr. Balakrishnan has relevant information.
Moreover, Power Integrations designated Mr. Balakrishnan as Power Integrations’
30(b)(6) witness concerning the invalidity and noninfringement of the asserted patents. There is
no dispute that Fairchild was entitled to this discovery by September 30, 2005, or that Power
Integrations failed to provide it. It would be highly prejudicial to force Fairchild to submit
expert reports before receiving the fact discovery to which it is entitled.
III. Fairchild’s Proposed Schedule Is Reasonable.
Fairchild’s proposed schedule is driven entirely by Power Integrations’ failure to produce
Mr. Balakrishnan for deposition. While fact discovery was to end by September 30, 2005, Mr.
Balakrishnan’s deposition will not begin until November 17, 2005. The parties have agreed that
this deposition will continue for multiple days. This is a minimum delay of seven weeks}
Fairchild has proposed essentially the same schedule as currently set by the Court. The
only difference is an additional week for the parties to exchange rebuttal expert reports to
accommodate the Hanukah, Christmas and New Year’s holidays.
Power Integrations’ failure to provide Fairchild with fact discovery unavoidably impacts
the remaining schedule. Extending expert reports requires a similar extension to the deadline for
expert discovery. Likewise, the Court had indicated that expert reports and discovery were to be
completed prior to claim construction. Thus, that hearing, and the accompanying briefing, must
be extended. Dispositive motions should be extended to so that the parties can incorporate the
Court’s claim construction ruling and the pretrial conference extended so that the Court can
consider dispositive motions. Thus, Fairchild’s proposed schedule is both sensible and fair.
l Moreover, the parties have noticed over 25 additional depositions that have yet to be scheduled. This fact
discovery also should be concluded prior to expert reports.
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Case 1:04—cv—01371-JJF Document 126 Filed 10/28/2005 Page 3 of 4
IV. CONCLUSION.
Sympathetic to Mr. Balakrishnan’s health, Fairchild repeatedly agreed to reschedule Mr.
Balakrishnan’s deposition. It is improper for Power Integrations to now seek to use this
cooperation to prejudice Fairchild’s ability to prepare its expert reports. Accordingly, Fairchild
respectfully requests that the Court grant its motion to extend the schedule.
ASHBY & GEDDES
/s/ John G. Day
Steven J. Balick (I.D. 2114)
Jolm G. Day (I.D. 2403)
Lauren E. Maguire (I.D. #4261)
222 Delaware Avenue
17th Floor
P.O. Box 1 150
Wilmington, DE 19899
(302) 654-1888
sbaliekgalashby-geddescom
[email protected].
hnaguiregwashby- geddescorn
Attorneys for Defendants
FAIR CHILD SEMI COND U C TOR
INTERNATIONAL, INC. and FAIRCHILD
SEMICONDUCT OR CORP.
Of Counsel:
G. Hopkins Guy, III (#124811)
Bas de Blank (#191487)
ORRICK, HERRINGTON & SUTCLIFF E LLP
1000 Marsh Road
Menlo Park, CA 94025
(650) 614-7400
Dated: October 28, 2005
162959J
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Case 1:04—cv—01371-JJF Document 126 Filed 10/28/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I hereby certify that on the 28th day of October, 2005, the attached DEFENDANTS’
REPLY IN SUPPORT OF ITS EXPEDITED MOTION TO AMEND THE SCHEDULE
was served upon the below-named counsel of record at the address and in the manner indicated:
William J. Marsden, Jr., Esquire HAND DELIVERY
Fish & Richardson P.C.
919 N. Market Street, Suite 1100
P.O. Box 1 1 14
Wihnington, DE 19899
Frank E. Scherkenbach, Esquire VIA FEDERAL EXPRESS
Fish & Richardson P.C.
225 Franklin Street
Boston, MA 02110-2804
Michael Kane, Esquire VIA FEDERAL EXPRESS
Fish & Richardson P.C.
60 South Sixth Street
3300 Dain Rauscher Plaza
Minneapolis, MN 55402
Howard G. Pollack, Esquire VIA FEDERAL EXPRESS
Fish & Richardson P.C.
500 Arguello Street, Suite 500
Redwood City, CA 94063
Andre G. Bouchard, Esquire HAND DELIVERY
Bouchard Margules & Friedlander, P.A.
222 Delaware Avenue, Suite 1400
Wilmington, DE 19801
/s/ John G. Day
John G. Day