Free Answering Brief in Opposition - District Court of Delaware - Delaware


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Case 1 :05-cv-00292-JJF Document 235 Filed 06/21/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
LG.PI·IILiPS LCD CO., LTD.,
Plaintiff/Counterclaim Defendant,
Vi Civil Action No. 05-292 (HF)
TATUNO COMPANY;
TATUNG COMPANY OP AMERICA, INC.;
CI-IUNGHWA PICTURE TUBES, LTD.;
AND VIEWSONIC CORPORATION,
Defendants/Counterclaim Plaintiffs.
PLAINTIFF LG.PHILIPS LCD CO., LTDRS OPPOSITION TO DEFENDANTS’
MOTION TO ENLARGE TIME TO FTLE MOTION FOR SUMMARY JUDGMENT
Plaintiff LG.Phiiips LCD Co., Ltd. ("LPL") hereby opposes Defendants’ Motion to
Enlarge Time to File Motion for Summary Judgment (D.I. 223)(the “l\/lotion to Enlarge"), as
follows:
(1) The Motion to Eniarge ls Not Timely. Citing Fed.R. Civ. P. 6(lJ)(1), Defendants
assert that they tiled the Motion to Enlarge within the time limit they seek to enlarge. They did
not. Paragraph 6 ofthe Joint Rule 16 Scheduling Order dated December 21, 2005 (D.I. 62)
requires that "(d)ispositive motion brieting shall he completed no later than June 14, 2006f’
Obviously, the Scheduling Order contemplated an earlier deadline for filing dispositive motions.
Filing the Motion to Enlarge on the last day for briefing on dispositive motions was not within
the time limit for filing dispositive motions themselves.
The proper test for Defendants is thus not set forth in Fed.R.Civ.P. 6(b)(1) but rather in
Fed.R.Civ.P. 6(b)(2), which requires a showing of excusable neglect. Defendants Motion to
Enlarge shows that Defendants had reason to know LPL’s views on when damages accrue at

Case 1:05-cv-00292-JJF Document 235 Filed 06/21/2006 Page 2 of 4
least by June 2, 2006.l They have not shown excusahle neglect for missing the tiling deadline
for dispositive motions,.
(2) Defendants Motion for Summary Judgment Is Subject to LPLs Motion to Striker
Defendants tiled their Motion for Partial Summary Judgment on Damages Under 35 U.S,C. §287
(D.I. 219)(the "Surnrnary Judgment Motion") on June 13, 2006, the day before briefing was
required to be completed on dispositive motions. LPL filed a motion to strike (DJ. 222) as
untimely the Summary Judgment Motion the next day, before Defendants filed the Motion to
Enlarge. LPL submits that tl Court should determine LPL’s motion to strike without regard to
Defendants untimely Motion to Enlarge.
(3) The Motion to Enlarge Is Futile. Defendants filed a motion for summary
judgment on an intensely factual issue, namely whether LPL gave constructive notice of its
patent to the Defendants prior to the filing of this lawsuit. Defendants admit that there was prior
correspondence between LPI. and Defendants relevant to this issue. Defendants contend in the
Summary Judgment Motion that the prior correspondence does not amount to sufficient notice of
the patent; LPL will contend that it does. That difference is a classic "genuine issue of material
fact."
If the Court were to require LPL to respond to Defendants’ untimely Motion for
Summary Judgment, LPL would submit a Counter Statement, pursuant to the Court’s standard
form of order regarding summary judgment, setting forth those genuine issues of material fact.
Rather than waste the Court’s time reviewing that Counter Statement and deterrnining
that a dispute of material fact exists, LPL submits that the Court may simply deny Defendants’
’ LPI, contends that Defendants knew much earlier than that, and that if they had wanted to tile a timely summary
judgment motion they could have, but they surely could have tiled a request to extend the surnmaryjudgment tiling
deadline before the expiration ofthe time for summaryjudgnient briefing.
1

Case 1:05-cv-00292-JJF Document 235 Filed 06/21/2006 Page 3 of 4
Motion to Enlarge, and grant LPL’s motion to strike Defendant? Motion for Summary Judgment
(D.I. 222).
June 21, 2006 THE BAYARB FIRM
/s/ Richard D. Kirk @$0922)
222 Delaware Avenue, Suite 900
PD. Box 25130
Wilmington, DE 19899-5130
(302) 655—5000
rkir1c@bayardfirm.com
Counsel for Plaintiff
LGPHILES LCD CO., LTD.
GF COUNSEL:
Gaspare J. Bono
Matthew T. Bailey
Cass W. Christensen
McKenna Long & Aldridge LLP
1900 K Street, N.W.
Washington, D.C. 20006
(202) 496-7500
6'.!H33t)vl
2

Case 1:05-cv-00292-JJF Document 235 Filed 06/21/2006 Page 4 of 4
CERTIFICATE OF SERVICE
The undersigned counsel certiiies that, on June 21, 2006, he electronically filed
the foregoing document with the Clerk of the Court using CM/ECI-T, which will send
automatic notification of the filing to the following:
Robert W. Whetzel, Esq.
Matthew W. King, Esq.
Richards, Layton & Finger
One Rodney Square
P.O. Box 551
Wilmington, DE 19899
The undersigned counsel further certifies that copies ofthe foregoing document
were sent on June 21, 2006 by email and by hand to the above counsel and by email and
first class mail to the following nomregistered participants:
Christine A. Dudzik, Esq. Teresa M. Corbin, Esq.
Thomas W. Jeiikins, Esq. Glenn W. Rhodes, Esq.
Howrey LLP Julie Ciabler, Esq.
32l North Clark Street Howrey LLP
Suite 3400 525 Market Street
Chicago, IL 60610 Suite 3600
San Francisco, CA 94105
/s/ Richard D. Kirk (rl<09223
Richard D. Kirk
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