Free Letter - District Court of Delaware - Delaware

Case 1:04—cv—00901-JJF Document 291 Filed 07/24/2006 Page 1 of 2
MORRIS, NICHOLS, ARSHT Sn TUNNELL LLP
1201 Norzrru MARKET STREET
P.O. Box I347
WILMINGTON, DELAWARE 19899-1347
302 658 9200
302 658 3989 FAX
MARYELLEN NOREIKA
302 351 9278
302 425 3011 Fxx
[email protected]
July 24, 2006
BY E-FILING
The Honorable Joseph J. Faman, Jr.
United States District Court
844 King Street
Wilmington, DE 19801
Re: Affymetrix, Inc. v. Illmnina Inc., C.A. No. 04-CV-901 JJF
Dear Judge Faman:
I write on behalf of plaintiff in the above-referenced matter to request that the
Court hold a status conference to discuss the schedule in this case, particularly with respect to
expert discovery.
Trial in this case is set to commence on October 16, 2006. The Scheduling Order
originally entered by the Court provided that the Markman hearing would be held on March 8,
2006, opening expert reports would be served on April llth, rebuttal expert reports would be
served on May l2t and expert discovery would close on June 23rd.
On February 10, 2006, the Court issued an amended Scheduling Order, moving
the Markman Hearing several weeks and stating: "So that the parties experts will have the
benefit of the Court’s claim construction, the expert report due date will be moved to twenty (20)
days after receipt of the Court’s claim construction order."
While having the benefit of the Court’s claim construction prior to commencing
expert discovery may be desirable} Affymetrix requests that the Court allow expert discovery to
go forward in the absence of a Markman ruling — as contemplated by the original Scheduling
Order and as happens in the majority of patent cases. Affymetrix’s request is based on
1 Illumina has informed us that it would prefer to adhere to the current schedule and await
the Court’s claim construction determination before embarking on expert discovery.

Case 1 :04-cv-00901-JJF Document 291 Filed 07/24/2006 Page 2 of 2
The Honorable Joseph J. Faman, Jr.
July 24, 2006
Page 2
scheduling and planning problems a more open-ended schedule is causing for our expert
witnesses, as well as a desire to hold the trial date in this case.
Affymetrix is available at the Court’s convenience — whether in person or by
teleconference — to discuss the schedule in this case.
Respectfully,
/s/ Maryellen Noreika (#3208)
Maryellen Noreika
MN/bls
cc: Peter T. Dalleo, Clerk (By Hand)
Richard K. Herrmann, Esquire (By Hand)
Marcus E. Sernel, Esquire (By Fax)
Daniel R. Reed, Esquire (By Email)