Free Response to Order to Show Cause - District Court of Colorado - Colorado

Case 1:02-cv-02267-WDM-PAC

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Filed 11/21/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-02267-WDM-PAC (Consolidated with 03-cv-01633-WDM-PAC)

APPLIED INNOVATIVE TECHNOLOGIES, INC., a Colorado corporation, Plaintiff, v. EXCALIBUR ELECTRONICS, INC., et al. Defendants. RESPONSE TO ORDER TO SHOW CAUSE

Plaintiff Applied Innovative Technologies, Inc. ("AIT") hereby responds to the Court's Order to Show Cause dated November 7, 2005 (Docket #42). 1. On December 5, 2002, AIT filed a Complaint in United States District Court for

the District of Colorado Case No. 02-cv-02267-WDM-PAC alleging infringement of U.S. Patent No. 5,795,714 against Excalibur Electronics, Inc. ("Excalibur") and other Defendants. On February 14, 2003, Excalibur filed a Complaint against AIT in United States District Court for the Southern District of Florida Case No.03-20327-CIV-GRAHAM/GARBER alleging unfair competition, patent misuse and unenforceability of U.S. Patent No. 5,795,714. This case was transferred to the District of Colorado on August 20, 2003 and has been assigned Case No. 03cv-01633-WDM-PAC. On November 5, 2003, the 02-02267 Case and the 03-01633 Case were consolidated for discovery purposes under Case No. 02-cv-02267-WDM-PAC.

Case 1:02-cv-02267-WDM-PAC

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Filed 11/21/2005

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2.

In its Order to Show Cause, the Court stated that "On March 23, 2004, this case

was stayed at the request of the parties while a patent re-examination was performed. Counsel were ordered to file status reports about the status of the U.S. Patent Office re-examination every six months. No report has been filed, however, since April 30, 2004." 3. The parties have, in fact, complied with the Court's March 23, 2004 Order. AIT

has filed two status reports in the consolidated actions since April 30, 2004. AIT filed a status report in this consolidated action on November 1, 2004 (Docket #39), and June 30, 2005 (Docket #40). A copy of the November 1, 2004 and June 30, 2005 status reports as filed in the consolidated actions are attached hereto as Exhibit 1. 4. Accordingly, because the parties have complied with the Court's March 23, 2004

Order, this case should not be dismissed for failure to prosecute. The parties will continue to keep the Court advised of the status of the patent re-examination and will submit another status report to the Court on or before December 30, 2005, and every six months thereafter until the patent re-examination has been completed. Dated: November 21, 2005. Respectfully submitted, FAEGRE & BENSON LLP

s/ Neal S. Cohen_____________ Neal S. Cohen Mark W. Fischer 1900 Fifteenth Street Boulder, CO 80302 Telephone: (303) 447-7700 Facsimile: (303) 447-7800 E-mail: [email protected] [email protected] ATTORNEYS FOR PLAINTIFF APPLIED INNOVATIVE TECHNOLOGIES, INC.

Civil Action No. 02-WM-2267 (PAC) ­RESPONSE TO ORDER TO SHOW CAUSE

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Case 1:02-cv-02267-WDM-PAC

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Filed 11/21/2005

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 21, 2005, I electronically filed the foregoing RESPONSE TO ORDER TO SHOW CAUSE with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following persons at the given email addresses: James K. Lewis Patton Boggs 1660 Lincoln St., Suite 1900 Denver, CO 80294 [email protected] Counsel for Defendant Excalibur Electronics, Inc. Susan Bernhardt Netzorg, McKeever, Koclanes & Bernhardt LLC 1670 Broadway, Suite 500 Denver, CO 80202 [email protected] Counsel for Defendant Sharper Image Corporation I also hereby certify that on November 21, 2005, a true and correct copy of the foregoing PLAINTIFF'S STATUS REPORT was sent via facsimile and placed in the U. S. Mail, properly addressed, postage prepaid to the following non-CM/ECF participants: Richard M. Saccocio Law Office of Richard M. Saccocio, P.A. 100 Southeast 12th Street Fort Lauderdale, Florida 33316 Fax No.: (954) 764-6141 Counsel for Defendant Excalibur Electronics, Inc.

s/ Neal S. Cohen Neal S. Cohen Attorneys for Plaintiff Applied Innovative Technologies, Inc. FAEGRE & BENSON LLP 1900 Fifteenth Street Boulder, CO 80302 Telephone: (303) 447-7700 Facsimile: (303) 447-7800 E-mail: [email protected]

Civil Action No. 02-WM-2267 (PAC) ­RESPONSE TO ORDER TO SHOW CAUSE

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