Free Letter - District Court of Delaware - Delaware

Case 1 :O7—cv-00468-JJF Document 45 Filed 06/O3/2008 Page 1 of 3
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ELECTRONICALLY FILED
ORIGINAL BY HAND
June 3, 2008
The Honorable Joseph J . iF &I`1‘l3,I`l, Ir.
United States District Judge
District of Delaware
844 King Street
Wilmington, DE 19801
Rc: ICU Medical, Inc. v. RyMed Technologies, Inc.
Case N0. 07-468 (JJ F)
Dear Judge Farrran:
I represent defendant Ryi\/led Technologies, Inc. ("RyMed”) Mr. Horwitz represents
plaintiff ICU Medical, Inc. ("lCU"). I write to explain RyMed’s separate position on two key
issues in the proposed scheduling order that the parties submitted on Friday (D.l. 44).
The first issue is the proposed claim construction proceedings (paragraph 4). lCU’s
proposal does not allow enough time for claim construction discovery. As the Court knows from
prior proceedings, the patents at issue in this action have been litigated and construed by two
separate courts in two prior actions: (1) IC U Medical, Inc. v. B. Braun Medical, Case No. C01-
03202 (NDCA) and (2) ICU Medical, Inc. v. Alaris Medical Systems, Inc., Case No. CV04-689
(CDCA).
lCU’s proposed schedule prevents adequate time for defendant Rylvled to conduct claim
construction discovery. In particular, under ICU’s proposal, initial claim construction
procedures (identifying proposed terms and constructions) would begin in August, 2008 (90 days
prior to ICU’s proposed hearing in November, 2008). Ryl\/led, however, will require discovery
of documents and evidence relating to the two previous claim construction hearings as well as
depositions of inventors, patent attorneys and previous experts prior to preparing its proposed
constructions. Two months is simply not enough time to ensure that such claim construction
discovery can be completed. RyMed’s proposed hearing in February 2009 allows for the
necessary time to conduct claim construction discovery prior to identification of constructions
and briefing (which would start in November, 2008).
+**5 woir
www.bayardlaw.co1n Phone: (302) 655-5000 Fax: (302) 658-6395 ” afsnmg m

Case 1 :O7—cv-00468-JJF Document 45 Filed 06/O3/2008 Page 2 of 3
The Honorable Joseph J. Farnan, Jr.
_ ___ _ W 5, June 3, 2008
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The second issue is the phasing of discovery and the discovery cutoff Ryo/led contends
that discovery should be completed by May 22, 2009 without phased discovery. lCU’s proposal
does not provide adequate time for discovery, in particular for depositions (allowing only for 2% .
months of depositions, and over the Thanksgiving and Christmas holidays no less). Ryl\/led 2
_ anticipates significant third party depositions will be required regarding Ryl\/led’s invalidity and f
inventorship defenses (including individuals located in California who are not likely going to §
travel to Delaware for trial). lCU’s proposal allowing for only 2% months of depositions, and Q
only after claim construction is completed, prejudices Rymed’s ability to prepare its case -
adequately for trial.
lCU’s proposal for phased discovery (only written discovery pre-l\/larkrnan and only .
deposition discovery after Marlonan) should also be rejected. Phased discovery will unfairly
favor ICU because a significant portion of RyMed’s discovery will consist of third party _
depositions. Thus, one of RyMed’s primary discovery tools (third party depositions) would be I
effectively delayed and foreshortened, all the while ICU obtains documents and written
discovery responses from the Ryl\/fed.
Most importantly, lCU’s phased discovery does not allow for any depositions prior to the
Markman hearing, which unfairly favors ICU because the relevant depositions for the Markman
proceedings (inventors, patent prosecutors) would be of interest primarily to Ryl\/led. Moreover,
phased discovery prevents written discovery later in the discovery period based upon information
learned in depositions. ICU, ofcourse, may choose to conduct its own discovery in a phased
manner if it wishes to do so, but Ryivled should not he precluded from developing a discovery
plan that best makes sense for developing its own case.
lf the Court has any questions, we would he pleased to respond.
Richard D. Kirk (rk0922)
RDK/tn E
cc: Counsel as shown on the attached certificate
{Ol017290;vl}

Case 1 :O7—cv-00468-JJF Document 45 Filed 06/O3/2008 Page 3 of 3
CERTIFICATE OF SERVICE
The undersigned counsel certifies that, on June 3, 2008, he electronically tiled the
foregoing document with the Clerk of the Court using CM/ECP, which will send ·
automatic notification ofthe filing to the following:
Richard L. Horwitz, Esquire
Potter, Anderson & Corroon, LLP
1313 N. Market Street, 6lh Floor
Wilmington, Delaware 19899
The undersigned counsel further certifies that, on June 3, 2008, copies of the
foregoing document were sent by email and hand to the above local counsel and by email
and first ciass mail to the following non-registered participant:
James Pooley, Esquire
Marc Peters, Esquire
Kimberly Van Voorhis, Esquire
Morrison & Foerster, LLP
755 Page Mill Road
Palo Alto, CA 94304
/s/ Richard D. Kirk grk0922l
Richard D. Kirk
{00666484;v1}