PRICKETT, JONES & ELLIOTT
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January 28, 2008
VIA ELECTRONIC FILING
The Honorable Mary Pat Thynge
U.S. District Court for the District of Delaware
844 N. King Street
Wilmington, DE 18901
RE: Innovative Patents, L.L.C. et al v. Brain-Pad, [nc., C.A. No. 07-680-***
Dear Judge Thynge:
Earlier today we filed a joint Proposed Scheduling Order in the above matter. Although
the parties have reached agreement on many of the issues in the schedule, as that document
reflects, several issues remain unresolved. The following is a brief explanation of Plaintiffs'
positions on the contested scheduling issues.
Regarding the contested language of Paragraphs 1 and 4, Defendant has proposed that the
Scheduling Order provide a set of procedures governing mediation, and has drafted those
procedures such that the mediation process would begin almost immediately. While there is no
disagreement between the parties that Your Honor should conduct all proceedings in this matter,
including alternative dispute resolution (ADR), Plaintiffs do not believe it would be productive
to engage in ADR until discovery in this matter is completed, or at least until it is very far along.
Plaintiffs therefore believe that it is unnecessary to include Defendant's mediation procedures in
the proposed scheduling order and oppose the language of Paragraph 4. Additionally, Plaintiffs
believe that it is appropriate to include the phrase "when both parties deem it appropriate" in
Paragraph 1 of the Order to make clear that ADR will only begin when both parties believe that
the time is right. At such time as both parties agree that ADR would be useful, the parties can
submit a form of order outlining the ADR procedures.
With respect to the language of Paragraph 5, Defendant has proposed that the Court
schedule a Markman hearing on June 9, 2008. Plaintiffs believe that June 9 is far too early for a
claim construction hearing, coming as it does more than 4 1/2 months before the October 31,
2008 fact discovery cutoff the parties have agreed to. Because facts can be uncovered in
discovery that can affect the parties' interpretation of the claims, conducting a Markman hearing
before the completion of discovery would not be productive. Paragraph 14 of the Scheduling
Order, to which Defendant agrees, already contemplates that a hearing on claim construction will
take place after the claim construction issue identification deadlines and claim construction
briefing deadlines specified in Paragraphs 12 and 13 respectively. For these reasons Plaintiffs
20368.l\357704vl
Case 1:07-cv—OO680-IVIPT Document 27 Filed O1/28/2008 Page 2 of 2
The Honorable Mary Pat Thynge
January 28, 2008
Page 2
believe that the language of Paragraph 5 should be omitted and that the Markman hearing should
be scheduled for sometime after answering briefs on the claim construction issue are filed on
December 30, 2008.
Regarding the dates for expert disclosures in Paragraph 6(d), Defendant proposes that
opening expert reports should be due on September 1, 2008, Labor Day, and that rebuttal expert
reports should be due on October 15, 2008. Plaintiffs propose that opening and rebuttal expert
reports should be exchanged on October 1, 2008 and October 30, 2008 respectively. Plaintiffs'
proposed dates allow more than adequate time for the exchange of expert reports, and are closer
to the proposed fact discovery cut off of October 31, 2008. Plaintiffs' dates are also less likely to
interfere with the experts' and counsel's summer travel plans. Also, Plaintiffs have proposed
Friday, November 21, 2008 as a more convenient deadline for expert depositions than
Defendant's proposal of November 30, 2008, which is the Sunday following Thanksgiving.
Finally, the parties were unable to agree on the filing deadline for case dispositive
motions. Defendant has proposed a deadline of December 15, 2008, the same date the parties
have agreed to for their initial briefs on claim construction. Plaintiffs would like to avoid
scheduling two brief deadlines on the same day, and believe it is in the interests of both parties to
complete briefing on claim construction in advance of briefing case dispositive motions.
Plaintiffs therefore propose January 9, 2009 as the deadline for filing case dispositive motions.
Counsel for Plaintiffs are prepared to address these issues in greater detail during the
scheduling conference this Wednesday, January 30, 2008. Counsel are also available at the call
of the Court to answer any questions that Your Honor may have.
Respectfully,
f F {
T . Clayto they
DE Bar #4378
J CA/sam
Enclosure
cc: Clerk of Court (via Electronic Filing)
Charles J. Brown, lll, Esquire (via Electronic Mail)
20368.l\357704vl
Case 1:07-cv-00680-MPT
Document 27
Filed 01/28/2008
Page 1 of 2
Case 1:07-cv-00680-MPT
Document 27
Filed 01/28/2008
Page 2 of 2
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