Free Declaration in Support - District Court of California - California

Case 3:07-cv-05054-CRB

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Filed 11/14/2007

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Bingham McCutchen LLP WILLIAM F. ABRAMS (SBN 88805) [email protected] PATRICK T. WESTON (SBN 211448) [email protected] SAMANTHA REARDON (SBN 240068) [email protected] 1900 University Avenue East Palo Alto, CA 94303-2223 Telephone: 650.849.4400 Facsimile: 650.849.4800 Attorneys for Plaintiff ALERE MEDICAL, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ALERE MEDICAL, INC., a California Corporation, Plaintiff, v. HEALTH HERO NETWORK, INC., a California Corporation, Defendant.

No. C-07-05054 CRB DECLARATION OF PATRICK T. WESTON IN SUPPORT OF ALERE MEDICAL, INC.'S SUPPLEMENTAL BRIEF OPPOSING TRANSFER PURSUANT TO 28 U.S.C. § 1404(A)

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C-07-05054 CRB

DECLARATION OF PATRICK T. WESTON IN SUPPORT OF ALERE MEDICAL, INC.'S SUPPLEMENTAL BRIEF OPPOSING TRANSFER PURSUANT TO 28 U.S.C. § 1404(a)

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I, Patrick T. Weston., declare and state as follows: 1. I am a counsel with Bingham McCutchen LLP, counsel of record for

plaintiff Alere Medical, Inc. I am licensed to practice law in California. The following facts are true of my own personal knowledge, and if called as a witness I would testify competently to them. 2. Attached as Exhibit A is a true and correct copy of the Complaint in the

action entitled Health Hero Network, Inc., v. Alere Medical, Inc., Northern District of Illinois Case No. 07-CV-5031 ("the Chicago action"), filed on September 6, 2007. 3. Attached as Exhibit B is a true and correct copy Alere's Answer and

Counterclaims in the Chicago action, filed on October 1, 2007. 4. Attached as Exhibit C is a true and correct copy of U.S. Patent No.

7,223,236 ("the `236 patent"). 5. Chicago action. 6. On Friday, November 9, 2007, a Request for Ex Parte Reexamination of To date, no discovery or initial disclosures have taken place in the

the `236 patent was filed with the United States Patent and Trademark Office ("USPTO"). A true and correct copy (without exhibits) is attached as Exhibit D. 7. On November 14, 2007, Alere filed a motion to stay the Chicago action

pending the outcome of the USPTO's reexamination inquiry of the `236 patent. A true and correct copy of the Memorandum In Support Of Alere's Motion To Stay This Litigation Pending The Reexamination Of The Patents In Suit (without exhibits) is attached as Exhibit E. 8. Attached as Exhibit F is a true and correct copy of the "Contact Us"

section of the website for the law firm of Black Lowe & Graham, located at http://www.blacklaw.com. This page states that the firm is located in Seattle, Washington. 9. U.S. Patent No. 5,601,435 lists "Haverstock & Associates" as the

prosecuting attorney, agent, or firm for that patent. (The `435 patent is attached to Alere's complaint in this matter (Docket No. 1) at Exhibit B). Upon information and belief, Haverstock & Associates used to be located in Palo Alto, California, and its principal was Thomas B. 2 C-07-05054 CRB A/72317412.3
DECLARATION OF PATRICK T. WESTON IN SUPPORT OF ALERE MEDICAL, INC.'S SUPPLEMENTAL BRIEF OPPOSING TRANSFER PURSUANT TO 28 U.S.C. § 1404(a)

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Haverstock. Attached as Exhibit G is a true and correct copy of Mr. Haverstock's attorney profile from the State Bar of California (downloaded from http://members.calbar.ca.gov/search/member_detail.aspx?x=121232) which states that Mr. Haverstock is now associated with the firm of Haverstock & Owens in Sunnyvale, CA. 10. Attached as Exhibit H is a true and correct copy of the home page for the

website of Lumen Intellectual Property Services, located at http://www.lumen.com. This page states that the Lumen firm is located in Palo Alto, California. 11. Attached as Exhibit I is a true and correct copy of the Judicial Caseload

Profile Report for the Northern District of California (taken from http://www.uscourts.gov/cgibin/cmsd2006.pl). For the twelve month period ending September 30, 2006, this report states that the median time from filing to trial of civil actions in the Northern District of California is 25.0 months. 12. Attached as Exhibit J is a true and correct copy of the Judicial Caseload

Profile Report for the Northern District of Illinois (taken from http://www.uscourts.gov/cgibin/cmsd2006.pl). For the twelve month period ending September 30, 2006, this report states that the median time from filing to trial of civil actions in the Northern District of Illinois is 26.4 months. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct, and that this declaration was executed on November 14, 2007, at East Palo Alto, CA.

____________________/s/__________________ Patrick T. Weston

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C-07-05054 CRB

DECLARATION OF PATRICK T. WESTON IN SUPPORT OF ALERE MEDICAL, INC.'S SUPPLEMENTAL BRIEF OPPOSING TRANSFER PURSUANT TO 28 U.S.C. § 1404(a)