Free Letter - District Court of Delaware - Delaware

E Case 1 :07-cv-00468-JJF Document 46 Filed 06/O3/2008 Page 1 of 2
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E ;E'’‘ And@fSQ]] Richard L. Horwitz
*7 . " ·` ` Pattn
LLP Attorhley at Law .
1313 North Market Street [email protected]
P.O. Box 951 302 984-6027 Direct Phone
Wilmington, DE 19899-0951 302 6584192 Fax
302 9346000
i www.potteranderson.com
June 2, zoos
VIA ELECTRONIC FILING I
The Honorable Joseph Ll. Farnan, Jr.
United States District Court
844 North King Street
Q Wilmington, I) 19801
Re: ICU Medical, Inc. v. Rymed Technologies, Inc.
(LA. N0. 07»468~J.]F
Dear Judge Farnan:
U We submit the following response to Ryl\/led's letter to the Court, which was filed earlier
today. RyMed's letter raises two general scheduling issues, which we address, below.
E Claim Construction Schedule
lCU’s proposed schedule provides ample time for claim construction discovery. As an
initial matter, claim construction should not require significant discovery. Selecting terms,
which under the Joint Schedule takes place 90 days before the Markmcm hearing, should not
require any discovery at all. Construing terms, which under the Joint Schedule begins I5 days
. after terms are selected, generally requires just the intrinsic patent record, all of which is
` available to Rylvled now and has been for many months. Any prior claim construction orders are
` also easily obtained, and, in fact, Ryl\/led already appears to have these orders based on
arguments made inthe numerous briefs filed to date. To the extent Rylvled feels it needs
extrinsic evidence to support its Markmon position, lCU*s proposed schedule allows for it.
Ryivled can serve its requests for production now; documents will be produced in July and, as
ICU explains in the paragraphs below regarding "phased" discovery, depositions can be taken
before the Markman hearing should the Court deem that appropriate.
More significant is the impact of the lengthy claim construction discovery Ryl\/led seeks
on the case schedule as a whole. Under Ryl\/led's schedule, with a claim construction hearing
g delayed until late February 2009, fact discovery would not close until the end of May 2009, and
Ryl\/led would not even contemplate resolving the case on sunnnary judgment until August
2009. While this might seem typical for a case that was just tiled, it should not be the schedule

Case 1:07-cv-00468-JJF Document 46 Filed 06/O3/2008 Page 2 of 2
( The Honorable Joseph J. Farnan
J une 3, 2008
Page 2
for a case that was filed ten months ago. This is especially true given that the ten-month delay
was entirely RyMed's doing. Rylvied first filed a motion to transfer to the Central District of
California (alter seeking two extensions of time to answer) and when that motion was denied, it
_ moved for reconsideration. During this time, despite TCi}'s repeated efforts, Ryl\/led refused to
l submit a schedule to the Court, which prevented discovery from moving forward. Ryl\/ied's
‘ complaint that it could not contemplate discovery because it did not know the scope ofthe case
in Delaware is misleading. lCU sued Rylvled for infringement in July 2007. Whether the case
Q proceeded in California or Delaware (both Courts ultimately decided that Delaware was the
proper forum) and whether additional non—patent claims would be litigated alongside the patent
claims is inapposite. Ryl\/led knew that lCU’s infringement claims would proceed somewhere; it
e could have and should have been considering its defense, including its claim construction
position, all along. There is no need to reward Ryl\/led's stalling with further delay.
TCU's proposed schedule sensibly accounts for the slow start to this case, allowing the
parties to focus on discovery that is reasonable and useful for the claim construction process,
_ while at the same time providing for fact discovery, expert reports and summary judgment
deadlines that allow both parties to address lCU’s infringement claims (and RyMed's invalidity
counterclairns) without further delay.
"Ph ascd” Discovery
lCU's proposed schedule included "phased" discovery as that is the Cou.rt's preferred
"form" schedule. Nevertheless, ICU does not oppose RyMed's position that depositions can take
place before written discovery is complete, should the Court find that approach more appropriate
under the circumstances. lCU's primary concern is to resolve its infringement claims as
promptly as possible given the significant delay in getting started. lf allowing for early
Q depositions helps that process along, ICU is amenable to it.
TCU remains available for a brief conference by telephone or in person to discuss any
remaining questions the Court may have.
Respectfully,
/s/ Richard L. Horwitz
0 Richard L. Horwitz
i RLH:nmt
867660 / 32116
Enclosure
cc: Clerk of the Court (via hand delivery)
Counsel of Record (via electronic mail)