Free Motion to Preclude - District Court of Delaware - Delaware

Case 1:04-cv-00418-SLR Document 157 Filed 11/18/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SEAGATE TECHNOLOGY LLC, ) .
Plaintiff, )
v. ) Civil Action No. 04-418-SLR
CORNICE, INC. )
Defendant. ) 5
)
DEFENDANT CORNICE'S MOTION TO PRECLUDE [NO. 2] SEAGATE FROM
ASSERTING INFRINGEMENT WITH RESPECT TO ACCUSED 4.0 PRODUCTS
Defendant Cornice, Inc. ("Comice") moves to preclude Seagate Technology LLC
("Seagate") from asserting infringement by any 4.0 gigabyte products. The Court has ruled three
times that the 4.0 products are not part of this case. Nevertheless, in expert reports, plaintiff
Seagate Teclmology LLC ("Seagate") has asserted that those products infringe four of the
patents-in-suit.
The Scheduling Order entered in this action included a fact discovery cut-off date
of June 30, 2005 (D.I. 36, 1] 2(b)). At a May 11 discovery conference, the Court denied Seagate's
request for discovery of Comice's 4.0 products that were in development, stating that "products
not in the market by the discovery cutoff date" would not be part of this case (D.I. 67, pp. 20-21).
At a June 28, 2005 discovery conference, the Court again denied Seagate's attempt to bring the
4.0 products into this case, saying that "the bottom line is, if it's not being marketed as a
commercial product, I thought I already ruled it was not part of this case." (D.I. 111, p. 14).
Then, on August 3, 2005, Seagate sought-- for a third time —- to take discovery on
the 4.0 products (D.I. 120). In an August 9, 2005 Order, the Court denied that request, on the

Case 1:04-cv-00418-SLR Document 157 Filed 11/18/2005 Page 2 of 3
basis that "the court is not persuaded . . . that any such products are presently in the market as
commercial products." (D.I. 123).
Notwithstanding the three Court Orders that Comice's 4.0 products would not be
part of this case, when Seagate served expert reports on August 23, 2005, it asserted
infringement of four ofthe patents-in—suit by Comice's 4.0 products (the 'O54, '845, ‘46l and '606
patents). The Court has ruled three times that Comice's 4.0 gigabyte products are "not part of
this case." Nevertheless, Seagate intends to try to put the 4.0 products before the jury.
Accordingly, the Court should enter an order precluding Seagate from asserting that the 4.0
products inhinge, to make clear that those products are not part of this case.
MORRIS, NICHOLS, ARSHT & TUNNELL
_ /s/ Julia Heaney
OF COUNSEL Jack B. Blumenfeld (#1014)
VCI-mn Winters Julia Heaney (#3052)
Steven Carlsen 1201 N. M&fkCt SI.
WEH., GOTSHAL & MANGES LLP P.O. Box 1347
201 Redwood Shores Parkway Wiimiiigtoii, DE 19399
Redwood Shores CA 94065
» (302) 658-9200
(650) 802*000 [email protected]
Russell Wheatley Attorneys for Defendant and Counterclaim
WEIL, corsmrr. & MANGES LLP P/¤in¢WC<>r~i<>¢» Inv-
700 Louisiana, Suite 1600
Houston, TX 77001
(713) 546-5000
Alan J. Weinschel
David C. Radulescu
Arlene Hahn
WEIL, GOTSHAL & MAN GES LLP
767 Fifth Avenue
New York, NY 10153
(212) 310-8000
November 18, 2005
2

' ‘ Case 1:04-cv-00418-SLR Document 157 Filed 11/18/2005 Page 3 of 3
CERTIFICATE OF SERVICE
I, Julia Heaney, hereby certify that on November 18, 2005, I caused to be
electronically filed the foregoing with the Clerk of the Court using CM/ECF, which will send
notification of such ti1ing(s) to the following:
William J. Marsden, Jr., Esquire
Fish & Richardson, P.C.
and that I caused copies to be served upon the following in the manner indicated:
BY HAND
William J. Marsden, Jr., Esquire
Fish & Richardson, P.C.
919 N. Market Street, Suite 1100
Wilmington, DE 19801
BY FEDERAL EXPRESS
Ruffin B. Cordell, Esquire
Fish & Richardson, P.C.
1425 K Street, NW, Suite 1100
Washington, DC 20005
/s/ Julia Heaney
Julia Heaney (#3052)
MORRIS, NICHOLS, ARSHT & TUNNELL
[email protected]
Attorneys for Defendant and
Counterclaim Plaintm’C0rnice, Inc.

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