Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-00858-SLR Document 541 Filed 01/10/2006 Page 1 of 2
FISH 8L RICHARDSON P.C.
Suite 1100
919 N. Market Street
13.0. Box 1114
Wilmington, Delaware
Frederick P. Fish 19899*114
1855-1930
Telephone
WK. Richardson January 10, 2006 302 652-5070
1859-1951
Facsimile
302 652·o6o7
The Honorable Sue L. Robinson W b S_
United States District Court mjvvéfjjgom
844 King Street
Wilmington, DE 19801
Re:LML Patent Corp. v. T eleCheck Services, Inc., etal.
USDC-D. Del. - C.A. O4-858 (SLR)
® Dear Chief Judge Robinson:
,,,,,,,, I write on behalf of the Defendants in the referenced action to confirm Defendants’
BOSTON response to Your Honor’s inquiry during the Markman hearing regarding Defendants’
proposed construction of the phrase "without using the check as a negotiable instrument."
DALLAS [D.I. 536 at 57.] As the Court noted, the Defendants’ proposed construction ——"the
” " ‘“““"“ *1 check, at no time, takes on the status ofa negotiable instrument" (Id. at 16)——uses the
NEW YORK legal term “negotiable instrument," which may not help a jury understand what is covered
We mea by the claims.
AALA;;;AN Defendants agree that it would be helpful to substitute words that describe what a
negotiable instrument is for the legal term "negotiab1e instrument" in Defendants’
°°A"S"”°T°N’ DC proposed construction. As we indicated at the hearing, the words "a check that is filled
out and signed" capture in laymen’s terms what a negotiable instrument is. (Id. at 96)
Since the claim limitation is phrased in the negative, Defendants believe the correct
construction of the phrase "without using the bank check as a negotiable instrument"
within claim 1, and the corresponding phrases in claims 8 and 9, is as follows: "the
check. at no time, is filled out and signed."
This construction has the same meaning and scope as Defendants’ earlier proposed
construction; it simply replaces the legal term "negotiable instrument” with a description
of what a negotiable instrument is, namely, a check that is filled out and signed.
Defendants’ expert reports would not be affected by this substitution, and summary
judgment of non-infringement is still warranted for the reasons set forth in Defendants’
pending Motions [D.I. 324, 341, 347].
Respectfully,
/ Mww"" "°
William J. Marsden, lr. __
80029321.doc AA WA

Case 1 :04-cv-00858-SLR Document 541 Filed 01/10/2006 Page 2 of 2
FISH sz RICHARDSON 1>.c.
The Honorable Sue L. Robinson
January 10, 2006
Page 2
cc: Richard K. Herrmann Esq. (Via ECF)
Richard D. Kirk, Esq. (Via ECF)
Francis DiGiovanni, Esq. (Via ECF)
Jamie McDole, Esq. (Via Email)
Mark Mizrahi, Esq. (Via Email)
Mark C. Scarsi, Esq. (Via Email)