Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-00858-SLR

Document 552

Filed 02/02/2006

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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.

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Civil Action No. 04-858 SLR

PLAINTIFF LML PATENT CORP.'S RESPONSE TO ECHO'S REQUEST FOR ONE WEEK CONTINUANCE OF TRIAL, OR IN THE ALTERNATIVE, ACCOMMODATION DUE TO SCHEDULING CONFLICT As an initial matter, LML agrees that an accommodation should be made in order to allow ECHO's counsel, any other traditionally observant Jewish counsel, and any such jurors, to observe the Passover holiday. However, LML believes that the selection of the exact date to start trial within the two week period currently set aside for the trial, or any decision not to hold trial on the last two days of Passover (Wednesday and Thursday, April 19th and 20th), should be done at the March 21, 2006 Pre-Trial Conference. Although LML believes it would be best to address the issues raised by ECHO's motion at the Pre-Trial Conference, LML does have a view at this time as to the best solution to the scheduling conflict. LML believes that trial can be completed in five trial days or less, not the originally scheduled ten, regardless of whether this Court bifurcates liability from the other issues in this case. Indeed, since the Scheduling Order was entered, the defendants have dropped various defenses and LML has dropped two of three patents-in-suit. LML also has narrowed the

Case 1:04-cv-00858-SLR

Document 552

Filed 02/02/2006

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number of asserted claims from the remaining patents-in-suit. The summary judgment and Daubert motions currently pending before the Court may also further narrow the issues and/or limit the evidence presented at trial. Thus, by conducting the trial during the second week of the two-week period currently set aside for trial, we would avoid any scheduling conflicts associated with the Passover holiday. For all of these reasons, LML respectfully requests that this Court defer ruling on ECHO's motion until the Pre-Trial Conference when all of the parties will have a clearer understanding of the issues that will need to be raised at trial. If the Court decides to resolve this issue now, LML respectfully suggests that the Court accommodate counsel's schedule by starting the trial on what would have been the second Monday of trial, Monday, April 24, 2006, and ending the trial no later than the originally scheduled end date of Friday, April 28, 2006.

/s/ Richard K. Herrmann Richard K. Herrmann #405 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 KIRKLAND & ELLIS LLP 200 East Randolph Drive Chicago, Illinois 60601 312.861.2000 Counsel for Plaintiff LML Patent Corp.

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Case 1:04-cv-00858-SLR

Document 552

Filed 02/02/2006

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that on the 2nd day of February, 2006, I electronically filed the foregoing document, PLAINTIFF LML PATENT CORP.'S RESPONSE TO ECHO'S REQUEST FOR ONE WEEK CONTINUANCE OF TRIAL, OR IN THE ALTERNATIVE, ACCOMMODATION DUE TO SCHEDULING CONFLICT, 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 2nd 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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