Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1 :04-cv-01231-SLR Document 55 Filed 05/12/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VERSUS TECHNOLOGY, INC., )
)
Plaintiff, )
v. ) Civil Action No. 04-1231 (SLR)
)
RADIANSE, INC. )
)
Defendant. )
RADIANSE’S MOTION TO DISMISS FOR LACK OF STANDING AS TO VERSUS’
CLAIM OF INFRINGEMENT OF U.S. PATENTS 5,572,195 AND RE36,791 OR,
WITH LEAVE OF COURT, FOR PARTLAL SUMMARY JUDGMENT OF DISMISSAL
Pursuant to Rule l2(b)(l) of the Federal Rules of Civil Procedure, Radianse moves to
dismiss Versus’ claims for infringement of two of the patents in suit, namely, U.S. Patent No.
5,572,195 (the " ‘195 patent") and U.S. Reissue Patent No. 36,791 (the " ‘791 Patent"), on the
ground that Versus lacks standing to sue. Versus purports to sue for infringement of both the
‘l95 and ‘79l patents as the exclusive licensee of those patents (Complaint, 1] I3). To the
contrary, the license under which Versus sues is exclusive only as to a defined limited field of
use, and Radianse’s indoor positioning systems do not fall within that limited field.}
To the extent that this Court deems the present motion to constitute a motion for
summary judgment, Radianse requests leave to tile the present motion pursuant to Section 6 of
the Scheduling Order. Radianse submits that prompt resolution ofthe standing issue is in the
interest of judicial economy and that postponement of the resolution of that issue will prejudice
I Versus also lacks standing to sue for infringement of the ‘ 195 and ‘79l patents, because the license
agreement under which Versus sues grants exclusive rights only for a limited ten—year period and, thus,
Versus does not possess all substantial rights to those patents and cannot maintain this action in its own
name. Radianse previously raised this issue with the Court in response to Versus’ motion to amend its
complaint under Rule 15. Versus has since withdrawn that motion. Radianse understands that Versus
may revise and re·iile its motion to amend, and reserves its rights with respect to this issue.
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Case 1:04-cv-01231-SLR Document 55 Filed 05/12/2005 Page 2 of 3
both parties by requiring them to conduct costly and unnecessary discovery and claim
construction briefing regarding the ‘195 and ‘791 patents.
The grounds for this motion are set forth in Radianse’s opening brief and its appendix,
and in the Aftidavits of Michael Dempsey and Paul Tessier filed herewith.
Respectfully submitted,
YOUNG CONAWAY STARGATT
& TAYLOR, LLP
. g_¤ It , j) LOEQJ _;_.
Josy W. Ingersoll #1IQq `
John W. Shaw (#3362)
Christian Douglas Wright (#3554)
The Brandywine Building
1000 West Street, 17th Floor
P. O. Box 391
Wilmington, DE 19899-0391
(302) 571-6672
[email protected]
Attorneys for Defendant Radianse, Inc.
OF COUNSEL:
Sibley P. Reppert
William A. Scofield, Jr.
LAHIVE & COCKFIELD
28 State Street
Boston, MA 02109-1784
(617) 227-7400
DATED: May 12, 2005
-2-
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Case 1:04-cv-01231-SLR Document 55 Filed 05/12/2005 Page 3 of 3
CERTIFICATE OF SERVICE
I, Christian Douglas Wright, hereby certify that on May 12, 2005, I caused to be
electronically filed a true and correct copy of the foregoing document with the Clerk of the Court
using CM/ECF, which will send notification that such filing is available for viewing and
downloading to the following counsel of record:
George Pazuniak, Esquire
Connolly Bove Lodge & Hutz LLP
The Nemours Building
1007 N. Orange Street
Wilmington, DE 19801, Esquire
I further certify that on May 12, 2005, I caused a copy of the foregoing document to be
served by hand delivery on the above-listed counsel of record.
YOUNG CONAWAY STARGATT & TAYLOR, LLP
__ ¤lELLi!§h-g{£iL_I Miliiigi
Christian Douglas W ht (No. 54)
The Brandywine Buil ing
1000 West Street, 17th Floor
Wilmington, Delaware 19801
(302) 571-6600
[email protected]
Attorneys for Radianse, Inc.
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