Free Notice of Appeal (Federal Circuit) - District Court of Delaware - Delaware

Case 1:04-cv-01199-SLR

Document 490

Filed 02/15/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SRI INTERNATIONAL, INC., a California Corporation, Plaintiff and Counterclaim-Defendant, v. INTERNET SECURITY SYSTEMS, INC., a Delaware corporation, INTERNET SECURITY SYSTEMS, INC., a Georgia corporation, and SYMANTEC CORPORATION, a Delaware corporation, Defendants and Counterclaim-Plaintiffs. C. A. No. 04-1199 (SLR)

PLAINTIFF'S SUPPLEMENTAL NOTICE OF APPEAL Pursuant to the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure, Plaintiff SRI hereby appeals to the United States Court of Appeals for the Federal Circuit from the Court's Summary Judgment Order entered on October 17, 2006 (Docket Nos. 471 and 472), its Judgment in a Civil Case entered on October 27, 2006 (Docket No. 473), and its Order Granting Rule 54(b) Certification, entered on January 16, 2007 (Docket No. 489). SRI believes its prior Notice of Appeal, filed on November 14, 2006 (Docket No. 475), was premature because the Court had not yet disposed of the parties' unadjudicated counterclaims. SRI is aware that the Federal Circuit, in State Contracting & Engineering Corp. v. State of Florida, 258 F.3d 1329, 1335 (Fed. Cir. 2001), indicated that a Rule 54(b) certification can cure a previously premature Notice of Appeal, and that the Federal Circuit suggested in that case that the Rule 54(b) order need not explicitly indicate that it is a nunc pro tunc ruling. However, the Rule 54(b) certification in question in State Contracting was, in fact, a nunc pro tunc ruling. As a result, SRI is not aware of any case in which the Federal Circuit has

Case 1:04-cv-01199-SLR

Document 490

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expressly held that a subsequent notice of appeal is unnecessary on the facts presented here. Accordingly, and out of an abundance of caution, SRI files this Supplemental Notice of Appeal and requests that the clerk forward this notice to the Federal Circuit at its earliest possible convenience. SRI intends to ask the Federal Circuit to consolidate this appeal with Case No. 2007-1065 once this appeal is docketed.

Dated: February 15, 2007

FISH & RICHARDSON P.C.

By: /s/ Kyle Wagner Compton Kyle Wagner Compton (#4693) 919 N. Market St., Suite 1100 P.O. Box 1114 Wilmington, DE 19889-1114 Telephone: (302) 652-5070 Facsimile: (302) 652-0607 Howard G. Pollack Katherine D. Prescott 500 Arguello St., Suite 500 Redwood City, CA 94063 Telephone: (650) 839-5070 Facsimile: (650) 839-5071 Attorneys for Plaintiff/Counterclaim Defendant SRI INTERNATIONAL, INC.

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Case 1:04-cv-01199-SLR

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CERTIFICATE OF SERVICE I hereby certify that on February 15, 2007, I electronically filed with the Clerk of Court the attached, PLAINTIFF'S SUPPLEMENTAL NOTICE OF APPEAL, using CM/ECF which will send electronic notification of such filing(s) to the following Delaware counsel. In addition, the filing will also be sent via hand delivery to: Richard L. Horwitz Potter Anderson & Corroon LLP Hercules Plaza 1313 North Market Street, 6th Floor P.O. Box 951 Wilmington, DE 19899 Richard K. Herrmann Morris James Hitchens & Williams PNC Bank Center 222 Delaware Avenue, 10th Floor P.O. Box 2306 Wilmington, DE 19899-2306 Attorneys for DefendantCounterclaimant Internet Security Systems, Inc., a Delaware corporation, and Internet Security Systems, Inc., a Georgia corporation Attorneys for DefendantCounterclaimant Symantec Corporation

I hereby certify that on February 15, 2007, I mailed by Federal Express and email, the document(s) to the following non-registered participants: Holmes J. Hawkins, III King & Spalding LLP 1180 Peachtree Street, NE Atlanta, GA 30309 Email: [email protected] Paul S. Grewal Renee DuBord Brown Day Casebeer Madrid & Batchelder, LLP 20300 Stevens Creek Boulevard, Suite 400 Cupertino, CA 95014 Email: [email protected] Email: [email protected] Attorneys for DefendantCounterclaimant Internet Security Systems, Inc., a Delaware corporation, and Internet Security Systems, Inc., a Georgia corporation Attorneys for DefendantCounterclaimant Symantec Corporation

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Theresa A. Moehlman King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036 Email: [email protected]

Defendant-Counterclaimant Internet Security Systems, Inc., a Delaware Corporation, and Internet Security Systems, Inc., a Georgia Corporation

/s/ Kyle Wagner Compton Kyle Wagner Compton
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