Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv-00360-JJF Document 208-2 Filed 07/31 /2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
AFFINION NET PATENTS, INC., )
)
Plaintiff, ) C.A. N0. 04-360-JF
)
v. )
)
MARITZ, INC., )
)
Defendant. )

OPPOSITION OF AFFINION NET PATENTS, INC. TO MARITZ’S MOTION
FOR LEAVE TO FILE SUPPLEMENTAL BRIEF ON CLAIM CONSTRUCTION
Pursuant to the Court’s Scheduling Order, the parties have engaged in extensive
briefing concerning the proper construction of the disputed claim terms. The Court heard
argument from the parties on that issue on June 7, 2006. After two rounds of briefing and
more than a month after the claim construction hearing, Maritz now asks for leave to
submit a supplemental brief on claim constmction. Affinion opposes that motion because
the supplemental briefing proffered by Maritz represents a major change to Maritz’s
proposed construction of the asserted claims and would require significant additional
briefing to address.
As was reflected in the claim construction briefing, the meaning of the term "on-
line incentive program" is the subject of major dispute between the parties. Maritz asked
the Court to interpret the claim term "on-line incentive program" to mean "a frequency
program that awards points to users for on—line product purchases." E D.I. 138 at 1] 6,
D.I. 151 at Exh. 15. Now that Affinion has shown in its statement of disputed facts in

Case 1 :04-cv-00360-JJF Document 208-2 Filed 07/31/2006 Page 2 of 4
response to Maritz’s motion for partial summary judgment of non-infringement that
Maritz’s VAULT system awards points for on-line product purchases (see D.I. 183 at {H1
4-7), Maritz seeks to rewrite its claim construction to add an additional limitation to that
claim term. Maritz now asks that the Court interpret “on-line incentive program" to
mean a "frequency program that awards points to users for on-line product purchases
made through the program’s website." g D.I. 197 at Exh. A (emphasis in original).
Maritz should not be permitted to submit a supplemental brief to rewrite its
proposed claim construction at this late date. Contrary to Maritz’s contention that it is
merely providing "clarification,” this change in Maritz’s proposed construction
indisputably adds a new limitation to the claim - - the requirement that the on-line
purchases for which points are awarded be made through the same website as the
incentive program. Responding to that proposed new limitation would require that
Affinion fully brief the reasons why Maritz’s new construction is not supported by the
record, which it should not be forced to do after briefing and argument on claim
construction has been completed. To reopen briefing on claim construction now would
prejudice Affinion’s trial preparation.
Maritz’s assertion in its Response to Affinion’s Counterstatement of Disputed
Facts that Affinion somehow knew that Maritz intended its claim construction to contain
that additional element is incorrect. In its briefing in response to Maritz’s opening claim
construction brief, Affinion did rg address the issue of whether the on-line product
purchase was required to be from the same website because Maritz’s interpretation did
not include that limitation. None of the examples cited by Maritz from Affinion’s brief
describe or address the limitation now proposed by Maritz. Indeed, if Affinion believed
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that Maritz was proposing the additional limitation that on-line purchases for which
points are awarded be purchases conducted through the program website -- a construction
that strays even further from the claim language, specification and prosecution history
than Maritz’s original construction -- it would have been a major focus of Affinion’s
briefing. Thus, Affinion has had no fair opportunity to address why this additional
limitation should not be read into the asserted claims and Maritz should not be permitted
to reopen briefing on this issue now.
CONCLUSION
For the foregoing reasons, Maritz’s Motion for Leave to File Supplemental Brief
on Claim Construction should be denied.
MORRIS, NICHOLS, ARSHT & TUNNELL LLP
/s/ Maryellen Noreika (#3208)
Jack B. Blumenfeld (#1014)
Maryellen Noreika (#3208)
1201 N. Market Street
P.O. Box 1347
Wilmington, DE 19899
(302) 658-9200
Attorneys for Plaintwf Ayfinion Net Patents, Inc.
OF COUNSEL:
Steven Lieberman
Sharon L. Davis
R. Elizabeth Brenner
ROTHWELL, FIGG, ERNST & MANBECK, P.C.
1425 K Street, N.W.
Suite 800
Washington, D.C. 20005
(202) 783-6040
July 31, 2006
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Case 1:04-cv-00360-JJF Document 208-2 Filed 07/31/2006 Page 4 of 4
CERTIFICATE OF SERVICE
I, Maryellen Noreika, hereby certify that on July 31, I electronically filed the
foregoing with the Clerk of the Court using CM/ECF, which will send notification of such
fi1ing(s) to the following:
Patricia Smink Rogowski
Connolly, Bove, Lodge & Hutz
I also certify that copies were caused to be served on July 31, 2006 upon the
following in the manner indicated:
BY HAND
Patricia Smink Rogowski
Connolly, Bove, Lodge & Hutz LLP
The Nemours Building
1007 N. Orange Street
Wilmington, DE 19801
BY FEDERAL EXPRESS
J. Bennett Clark
Sermiger Powers
One Metropolitan Square
St. Louis, MO 63102
/s/ Maggellen Noreika
Maryellen Noreika (#3208)
[email protected]

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