Free Motion to Amend/Correct - District Court of Arizona - Arizona

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

Charles F. Hauff, Jr. (AZ Bar No. 014465) Douglas W. Seitz (AZ Bar No. 004258) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6000 Attorneys for Eberle Design, Inc. and Electronic Devices, Inc. UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Eberle Design, Inc., and Electronic Devices, Inc., Plaintiff/Counterdefendants, v. Reno A&E, Defendant/Counterplaintiff.

CIV 02 2575 PHX DGC (Lead) CIV 03 883 PHX DGC (Consolidated) MOTION TO AMEND JUDGMENT

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Snell & Wilmer L.L.P.

Pursuant to Rule 59 of the Federal Rules of Civil Procedure, Eberle Design, Inc. and Electronic Devices, Inc. (collectively, "Eberle") hereby move to amend the Judgment by deleting items 2 and 3 (the findings on anticipation, obviousness, and inequitable conduct) and by modifying paragraph 1 simply to state "[t]hat claims 1-11, 13-15, 17, 21, 24-33, 35-42 and 44 of United States Patent No. 6,087,964 are invalid." The form of judgment submitted by Eberle and entered by the Court dutifully tracked the jury verdict form. As explained in Eberle's new trial motion, however, Eberle believes the jury's findings on anticipation, obviousness and inequitable conduct were flawed. If the Court agrees, items 2 and 3 of the existing judgment must be deleted. Moreover, regardless of whether the Court would grant a new trial on anticipation, obviousness or inequitable conduct, Eberle submits that Paragraph 2 of the judgment (relating to invalidity for anticipation and obviousness) should be deleted and Paragraph 1 should be revised simply to state "[t]hat claims 1-11, 13-15, 17, 21, 24-33, 35-42 and 44 of United States Patent 6,087,964 are invalid." There is no reason to specify that those
1754240.2

Case 2:02-cv-02575-DGC

Document 236

Filed 11/15/2005

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

claims are invalid for one reason but not another. The net result is that the claims are invalid, and the finding of non-invalidity on certain grounds is unnecessary surplusage. See, e.g., Remington Prods., Inc. v. N. Am. Phillips Corp., 763 F. Supp. 683, 688 (D. Conn. 1991) ("A final judgment must reflect the final disposition of the dispute, and `a properly formulated judgment should contain no extraneous material ....'"). In addition, as a practical matter, if the current judgment stands, Eberle would be forced to file a crossappeal from Paragraph 2 to protect itself in the event that Reno A&E successfully appeals Paragraph 1. That complication is unnecessary. It would make better sense for the Court to enter a judgment of invalidity generally, for Reno A&E to appeal that adverse judgment, and for Eberle to respond by defending the finding relating to the on-sale bar and arguing any alternative grounds to support the judgment it may desire to raise. At a minimum, Paragraph 2 should be revised to say "[t]hat Plaintiffs Eberle Design, Inc. and Electronic Devices, Inc. have not proven that claims 1-11, 13-15, 17, 21, 24-33, 35-42 and 44 of United States Patent No. 6,087,964 are invalid for anticipation or obviousness in light of prior art." Paragraph 2 currently refers to all claims of the patent, but Eberle did not seek declarations of invalidity as to the various claims that were not asserted against it or Claim 34, which Reno A&E withdrew for lack of evidence of infringement. RESPECTFULLY SUBMITTED this 15th day of November, 2005. SNELL & WILMER L.L.P.

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Snell & Wilmer L.L.P.

By: /s/ Charles F. Hauff, Jr. Charles F. Hauff, Jr. Douglas W. Seitz Attorneys for Plaintiff/Counterdefendants Eberle Design, Inc. and Electronic Devices, Inc.

1754240.2 Case 2:02-cv-02575-DGC

Document 236 2 - Filed 11/15/2005 -

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LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000

CERTIFICATE OF SERVICE I hereby certify that on November 15, 2005, I electronically transmitted the foregoing Motion to Amend the Judgment to the Clerk's Office using the CM/ECF System for filing to the following CM/ECF participants: Michael D. Rounds, Esq. WATSON & ROUNDS 5371 Kietzke Lane Reno, Nevada 89511 Henry C. Bunsow, Esq. HOWREY, SIMON, ARNOLD & WHITE 525 Market Street Suite 3600 San Francisco, CA 94105 George C. Chen, Esq. BRYAN CAVE Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 I further certify that on November 15, 2005, I served a courtesy copy of the aforementioned documents and transmittal of a Notice of Electronic Filing by mail on the following: The Honorable David G. Campbell United States District Court 401 West Washington Street Phoenix, AZ 85003-2156 DATED this 15th day of November, 2005. SNELL & WILMER L.L.P.

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Snell & Wilmer L.L.P.

By: /s/ Charles F. Hauff, Jr. Charles F. Hauff, Jr. Douglas W. Seitz Attorneys for Plaintiff/Counterdefendants Eberle Design, Inc. and Electronic Devices, Inc.

1754240.2 Case 2:02-cv-02575-DGC

Document 236 3 - Filed 11/15/2005 -

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