Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-00858-SLR

Document 556

Filed 02/10/2006

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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.

Civil Action No. 04-858 SLR

LML'S RESPONSE TO DEFENDANTS' MOTION TO BIFURCATE WILLFULNESS AND DAMAGES FROM LIABILITY As this Court recently stated, the parties "have filed substantial summary judgment motions that may, or may not, be case or issue dispositive." (D.I. 553 at 2) Until these motions are decided, it is not yet "determine[d] what issues remain for litigation." (Id. at 2) This case has not been declared by the Court or the parties as "Complex Litigation." It is no more complex than many of the patent cases filed and tried in this District. Bifurcation is not necessary or

required. Moreover, resolution of the pending motions may result in narrowing the liability issues considerably. Indeed, resolution of the pending motions could result in damages and willfulness being the only issues that remain for trial. For example, currently pending are LML's motions for summary judgment of infringement against each defendant (D.I. 312, 315, 318) and a motion for summary judgment of no anticipation (D.I. 321). Also pending is LML's Daubert motion seeking to preclude Defendants' expert from offering opinions on the obviousness defense (D.I. 333). If these motions are granted, the only issues left for the jury will be willfulness and damages, thereby rendering moot Defendants' motion to bifurcate.

Case 1:04-cv-00858-SLR

Document 556

Filed 02/10/2006

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Thus, Defendants' Motion to Bifurcate Willfulness and Damages from Liability should be denied. At the very least, the motion is premature, and should be deferred until the Pretrial Conference.

Dated: February 10, 2006 /s/ Richard K. Herrmann Richard K. Herrmann #405 Mary B. Matterer #2696 Morris James Hitchens & Williams 222 Delaware Avenue, 10th Floor Wilmington, Delaware 19801 (302) 888-6800 [email protected] Russell E. Levine, P.C. Jamie H. McDole Edward K. Runyan Aaron D. Charfoos KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 (312) 861-2000 Attorneys for LML Patent Corp.

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Case 1:04-cv-00858-SLR

Document 556

Filed 02/10/2006

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CERTIFICATE OF SERVICE I hereby certify that on the 10th day of February, 2006, I electronically filed the foregoing document, LML'S RESPONSE TO DEFENDANTS' MOTION TO BIFURCATE WILLFULNESS AND DAMAGES FROM LIABILITY, with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Collins J. Seitz, Jr., Esq. Francis DiGiovanni, Esq. Connolly Bove Lodge & Hutz LLP 1007 North Orange Street Wilmington, DE 19801 Richard D. Kirk, Esq. The Bayard Firm 222 Delaware Avenue, 9th Floor Wilmington, DE 19801 Additionally, I hereby certify that on the 10th day of February, 2006, the foregoing document was served via email on the following non-registered participants: Robert Jacobs, Esq. Mark B. Mizrahi, Esq. Belasco Jacobs & Townsley, LLP Howard Hughes Center 6100 Center Drive, Suite 630 Los Angeles, CA 90045 Mark C. Scarsi, Esq. Vision L. Winter, Esq. O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 William J. Marsden, Jr., Esq. Timothy Devlin, Esq. Fish & Richardson, P.C. 919 North Market Street, Suite 1100 Wilmington, DE 19801

/s/ Richard K. Herrmann Richard K. Herrmann (#405) Mary B. Matterer (#2696) MORRIS, JAMES, HITCHENS & WILLIAMS LLP 222 Delaware Avenue, 10th Floor Wilmington, Delaware 19801 (302) 888-6800 [email protected] Counsel for Plaintiff LML PATENT CORP.

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