Free Letter - District Court of Delaware - Delaware

Case 1:O4—cv-00901-JJF Document 451 Filed 10/O9/2007 Page 1 of 1
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OITIS lames LLP
Richard K. Hemnann
$02888.6816
[email protected]
October 9, 2007
VIA EFILING AND HAND DELIVERY
The Honorable Joseph J. Farnan, Jr.
USDC for the District of Delaware
844 King Street
Wilmington, DE 19801
Re: Affymetrix, Inc. v. Illuminu, Inc., D. Del., C.A. N0. 04-901-JJF
Your Honor:
Illumina writes to very briefly respond to an argument made in Affymetrix’s letter of
yesterday that included a misleading quotation from a prior conference with Your Honor.
Affymetrix included a quotation in its letter that implies that the Court had decided at the prior
conference to try the willfulness and invalidity issues in the same trial, but Affymetrix did not
include the discussion from later in that same conference that clarified that this was not the case:
Counsel for Illumina: Can I take up with you whether willfulness
should be at phase two or phase three later'?
Court: Oh, sure. I’m not fully engaged to where that ought to go.
I just don’t want to get it in the infringement and damages phase
because of that overlap ....
(2/8/07 Tr. at 57). Thus, contrary to Affymetrix’s misleading quotation, the Court clearly
reserved the discussion on when willfulness should be tried until a later time, and did not decide
this issue at the prior conference. In any event, as discussed in Illumina’s letter of yesterday, the
Federal Circuit’s Seagate decision calls into question whether Affymetrix still has any
willfulness case, and at the very least further complicates the ability to try invalidity and
willfulness together in the same trial.
We look forward to discussing these and other issues at the status conference tomorrow.
Respectfully,
Richard Herrmagg I.D. No. 405
[email protected]
cc: MaryEllen Noreika, Esq. (via email & hand delivery)
Daniel Reed, Esq. (via email)
500 Delaware Avenue, Suite 1500 [ Wilmington, DE 19801-1494 T302.888.68OO F302571.1750
Mailing Address P.O. Box 2306 | Wilmington, DE 19899·2306 www.morrisjames.com