Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-00858-SLR

Document 551

Filed 02/01/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LML PATENT CORP., ) ) Plaintiff, ) Civil Action No. vs. ) ) TELECHECK SERVICES, INC., ) ELECTRONIC CLEARING HOUSE, INC., ) XPRESSCHEX, INC. AND ) NOVA INFORMATION SYSTEMS, INC., ) ) Defendants. ) )

04-858-SLR

PLAINTIFF LML PATENT CORP.'S REPLY TO ITS MOTION TO STRIKE DEFENDANTS' SUPPLEMENTAL CLAIM CONSTRUCTION LETTER TO THIS COURT At the Markman hearing, this Court did not ask for supplemental briefing or for further written submissions from the parties on the claim element "without using the check as a negotiable instrument." At that hearing, this Court simply asked a question and counsel for TeleCheck, William Marsden, responded by providing a "construction acceptable to the Defendants." (D.I. 536 at 95-96). At the beginning of the hearing, Mr. Marsden made clear that he was speaking for all Defendants on this element. (Id. at 5). Moreover, counsel for the other co-Defendants were present in open court and if they had a different view than counsel for TeleCheck, they could have, and should have, expressed it at that time. Thus, Defendants January 10, 2006, letter, purporting to memorialize and confirm Defendants' position, was not requested by the Court and is both improper and unnecessary. Indeed, the transcript does not contain any request for a written submission by the Defendants.

Case 1:04-cv-00858-SLR

Document 551

Filed 02/01/2006

Page 2 of 4

Contrary to the position taken in Defendants' Response to LML's Motion to Strike, Defendants' letter to the Court also contains more than a mere "memorialization" and "confirmation." It contains additional legal argument. For example, Defendants argue that a "negotiable instrument is, namely, a check that is filled out and signed." (January 10, 2006, Letter from Marsden to this Court). This is a legal argument that seeks to add additional interpretations of not only the patent at issue, but also the Uniform Commercial Code. LML moves this Court to strike Defendants' letter. In the alternative, LML seeks leave to respond to the legal arguments in Defendants' letter. For example, LML would like the opportunity to demonstrate how the specification of the `988 Patent supports a construction of the element "without using the bank check as a negotiable instrument" regardless of whether the check is filled out and signed. This motion does not deal with an insignificant issue. This Court's Orders

prohibit letters to this Court. Counsel appearing before Your Honor in this and other matters take these admonitions seriously. A ruling permitting an unsolicited

communication will set a new standard for the parties to follow in the future. Anything less will create an unleveled playing field with different rules for different parties. For all of the foregoing reasons, LML respectfully requests that this Court grant its Motion to Strike.

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Case 1:04-cv-00858-SLR

Document 551

Filed 02/01/2006

Page 3 of 4

Dated: February 1, 2006 /s/ Richard K. Herrmann Richard K. Herrmann (I.D. No. 405) MORRIS JAMES HITCHENS & WILLIAMS LLP 222 Delaware Avenue, 10th Floor Wilmington, Delaware 19801 302.888.6800 [email protected] Russell E. Levine, P.C. Jamie H. McDole Aaron D. Charfoos Edward K. Runyan Lesley G. Smith 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 551

Filed 02/01/2006

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on the 1st day of February, 2006, I electronically filed the foregoing document, PLAINTIFF LML PATENT CORP.'S REPLY TO ITS MOTION TO STRIKE DEFENDANTS' SUPPLEMENTAL CLAIM

CONSTRUCTION LETTER TO THIS COURT, 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 1st 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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