Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-00901-JJF Document 208 Filed 02/09/2006 Page 1 of 2
MORRIS, JAMES, HITCHENS & WILLIAMS LLP
222 Delaware Avenue, 10th Floor
Wilmington, Delaware 19801-1621
(302) 888-6800
Facsimile (302) 571-1751
www.morrisjames.com
Richard K. Herrmann Mailing Address
(302) 888-6816 P.O. Box 2306
[email protected] Wilmington, DE 19899-2306
February 9, 2006
VIA ELECTRONIC FILING
The Honorable Joseph J. Faman, Jr.
United States District Court
District of Delaware
844 King Street
Wilmington, DE 19801
Re: Ajjfirmetrix, Inc. v. Illumina, Inc., D. Del., C.A. No. 04-901-JJF
Your Honor:
I write to respond to the February 6 letter from Affymetrix’ counsel seeking to delay the
Markman briefing and hearing schedule set by the Court.
First, it is necessary to correct a misstatement in Aff`ymetrix’ letter. It is not true that
Affymetrix "conf`erred with Illumina on this issue, but Illumina has not agreed to move the date
for the Markman hearing." Affymetrix only asked whether Illumina would agree to move the
Markman hearing back two months to mid-May, without any change to the overall schedule or
trial date. Illumina said it could not agree to this request, but inquired whether there was a
specific conflict, and/or more modest extension, that Affyrnetrix might propose. Affymetrix did
not respond to Illumina’s inquiry, and instead filed its letter with the Court.
As for Aff`yrnetrix’ proposal in its letter, this proposal is not workable for Illumina.
Counsel for Illumina has preexisting commitments in both late March and early April and cannot
conduct the Markman hearing at that time. Moreover, pushing the Markman hearing back that
far would greatly complicate the process of` completing expert reports in April, and also threaten
the ability of the Court to issue its Markman ruling in time f`or summary judgment briefing. A
further extension of` the Markman briefing and hearing into the middle of` April would require
extensions to other scheduled deadlines, including expert reports and deposition, and the
summary judgment deadline.
In the spirit of cooperation, Illumina would be agreeable to moving the Markman hearing
back by at most a week or two -- to a date convenient for the Court during the weeks of March
13 or 20 -- to try to alleviate Af`fymetrix’ staffing issues. Illumina believes such an extension
Dover (302) 678-8815 Broom Street (302) 655-2599 Newark (302) 368-4200

Case 1:O4—cv—OO901-JJF Document 208 Filed O2/O9/2006 Page 2 of 2
Momus, JAMES, HITCHENS & W1LL1AMs LLP
The Hon. Joseph J. Farnan, Jr.
February 9, 2006
Page 2
should address the issues raised in Affymetrix’ letter without resulting in undue prejudice to
Illumina.
Respectfully,
/s/ Richard K Herrmann
Richard K. Herrmann, I.D. No. 405
rher1·1r1a1111@,mo1·ris]`a1nes.com
cc: Dr. Peter T. Dalleo, Clerk of the Court (via electronic tiling)
MaryEllen Noreika, Esq. (via electronic tiling)
Michael J. Malecek, Esq. (via email)