Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-00858-SLR

Document 557

Filed 02/17/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LML PATENT CORP., Plaintiff, v. TELECHECK SERVICES, INC., ELECTRONIC CLEARING HOUSE, INC., XPRESSCHEX, INC. and NOVA INFORMATION SYSTEMS, INC., Defendants. C.A. 04-858 (SLR)

REPLY BRIEF IN SUPPORT OF DEFENDANTS' MOTION TO BIFURCATE WILLFULNESS AND DAMAGES FROM LIABILITY Francis DiGiovanni (I.D. No. 3189) CONNOLLY BOVE LODGE & HUTZ LLP The Nemours Building 1007 N. Orange Street Wilmington, Delaware 19801 302.658.9141 [email protected] Counsel for Defendants Electronic Clearing House, Inc. and Xpresschex, Inc. William J. Marsden, Jr. (I.D. No. 2247) Timothy Devlin (I.D. No. 4241) Stamatios Stamoulis (I.D. No. 4606) FISH & RICHARDSON P.C. 919 North Market Street, Suite 1000 Wilmington, Delaware 19801 302.652.5070 [email protected] Counsel for Defendant TeleCheck Services, Inc. Richard D. Kirk (I.D. No. 922) THE BAYARD FIRM 222 Delaware Avenue, Suite 900 Wilmington, DE 19801 302.429.4208 [email protected] Counsel for Defendant NOVA Information Systems, Inc.

Dated: February 17, 2006

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Document 557

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LML's Response to Defendants' Motion for Bifurcation, by simply arguing the motion is premature until the Court rules on the pending summary judgment motions, tacitly concedes that bifurcation may be warranted in light of the existing claims and defenses at issue. This is particularly true given the recent communications with the Court regarding possible adjustments to the trial schedule that may limit available trial days. Defendants believe that any shortened time period will heighten the need for bifurcation, given the number of parties and accused services at issue. LML's argument that Defendants' Motion is premature is also wrong as a matter of procedure and case management. While the parties have filed a number of summary judgment motions, deferring the question of bifurcation until those motions are decided would reserve little time for briefing and decision on the issue. In contrast, with the filing of this Reply, Defendants' motion is now fully briefed in advance of the Pre-Trial Conference. LML also suggests that this case should not be bifurcated because it has not been certified as "complex" under Rule 16. See D. Del. LR 16.1. This contention has no merit in light of the many cases bifurcated in this Court and District since enactment of that Rule, without any certification of the cases as "complex." See, e.g., June 30, 2005 Hearing Tr. 3:10, Tenneco Auto. Operating Co., Inc. v. Visteon Corp. (Civ. A. No. 031030 (SLR)); ArthroCare Corp. v. Smith & Nephew, Inc., 2004 WL 896002, at *1 (D. Del. Mar. 10, 2004), reconsideration denied, 315 F. Supp. 2d 615 (D. Del. 2004), aff'd in part, rev'd in part, and vacated in part on other grounds, 406 F. 3d 1365 (Fed. Cir. 2005); Novartis Pharm. Corp. v. Eon Labs Mfg., Inc., 206 F.R.D. 396, 398 n.2 (D. Del. 2002); Enzo Life Sciences, Inc. v. Digene Corp., Civ. A. No. 02-212-JJF, 2003 WL 21402512 (D. Del. June 10, 2003); Thomson S.A. v. Quixote Corp., 979 F. Supp. 286, 287 n.3 (D. Del. 1997).

Case 1:04-cv-00858-SLR

Document 557

Filed 02/17/2006

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For the foregoing reasons, Defendants respectfully request that the Court bifurcate the issues of willfulness and damages from the issue of liability for trial.

/s/ Francis DiGiovanni Francis DiGiovanni (I.D. No. 3189) CONNOLLY BOVE LODGE & HUTZ LLP The Nemours Building 1007 N. Orange Street Wilmington, Delaware 19801 302.658.9141 [email protected] Counsel for Defendants Electronic Clearing House, Inc. and Xpresschex, Inc.

/s/ Stamatios Stamoulis William J. Marsden, Jr. (I.D. No. 2247) Timothy Devlin (I.D. No. 4241) Stamatios Stamoulis (I.D. No. 4606) FISH & RICHARDSON P.C. 919 North Market Street, Suite 1000 Wilmington, Delaware 19801 302.652.5070 [email protected] Counsel for Defendant TeleCheck Services, Inc. /s/ Richard D. Kirk Richard D. Kirk (I.D. No. 922) THE BAYARD FIRM 222 Delaware Avenue, Suite 900 Wilmington, DE 19801 302.429.4208 [email protected]

Dated: February 17, 2006
80030261.doc

Counsel for Defendant NOVA Information Systems, Inc.

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Case 1:04-cv-00858-SLR

Document 557

Filed 02/17/2006

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CERTIFICATE OF SERVICE I hereby certify that on February 17, 2006, I electronically filed REPLY BRIEF IN SUPPORT OF DEFENDANTS' MOTION TO BIFURCATE WILLFULNESS AND DAMAGES FROM LIABILITY with the Clerk of Court using CM/ECF which will send notification of such filing(s) to the following: BY HAND Richard K. Herrmann Esq. Mary B. Matterer, Esq. Morris James Hitchens & Williams PNC Bank Center 222 Delaware Avenue, 10th Floor Wilmington, DE 19899-2306 BY HAND Richard D. Kirk, Esq. The Bayard Firm 222 Delaware Avenue, Suite 900 Wilmington, DE 19801 I hereby certify that on February 17, 2006, I have mailed by United States Postal Service, the document(s) to the following non-registered participants: Russell Levine, Esq. Jamie McDole Kirkland & Ellis 200 East Randolph Drive Chicago, IL 60601 Mark C. Scarsi O' Melveny & Myers LLP 400 S Hope Street Los Angeles, CA 90071 /s/ Stamatios Stamoulis Stamatios Stamoulis Robert Jacobs, Esq. Belasco Jacobs & Townsley, LLP Howard Hughes Center 6100 Center Drive, Suite 630 Los Angeles, CA 90045 BY HAND Francis DiGiovanni Connolly Bove Lodge & Hutz LLP The Nemours Building 1007 North Orange Street Wilmington, DE 19801