Free Letter - District Court of Delaware - Delaware


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Date: December 31, 1969
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State: Delaware
Category: District Court of Delaware
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Case 1 :05-cv-001 60-KAJ-|\/I PT Document 22 Filed 06/24/2005 Page 1 of 3
Youivo CONAWAY STARGATT & TAYLOR, LLP
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NETLL1 MULLEN WA1.s1»1 TIMOTHY E. LENGKEEK E-MAIL; n·nO1·[email protected](;5t_(;()m GEORGETOWN, DELAWARE 19947
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MARTIN S. LEssNER JENNIFER R. NOEL
PAULINE K MORGAN
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LISA B. Goomwa FRA1 Joma W. SI··L·\\V MJCHELE SHERRETTA
JAMES P. HUGHES, JR MICHAEL P. STAFFORD
EDWIN J. HARRON 10104 E. TRACEY
M1cRAE1. R. NESTOR MARGARET B. \V1—11TE1xLA.·~1
MALREEN D. LLRE CHRISTIAN DOUGLAS XVRIGHT
Roux P. B1ssE1.z. SH.·\RON M. ZIEG
BY E-FILING
The Honorable Kent A. Jordan
U.S. District Court
844 North King Street, Room 4209
Wilmington, DE 19801
Re: Novozymes A/S v. Genencor International, Inc., et al.
C.A. N0. 05-160-KA]
Dear Judge Jordan:
This letter is being submitted on behalf of all parties to this action.
In preparation for the scheduling teleconference set for June 30, 2005, the parties
have filed the form of scheduling order required by Your Honor’s May 25, 2005 order. The
. parties have agreed to an overall proposed schedule for the case and other issues as set forth in
the proposed scheduling order.
As Your Honor is aware, one matter the parties wish to discuss during the June 30
teleconference is the scheduling of plaintiffs motion for a preliminary injunction ("PI moti0n").
Counsel have discussed possible schedules, but were unable to reach agreement. This letter will
set forth each side’s proposed schedule and provides some context for that proposal.
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Case 1 :05-cv—00160-KAJ—l\/IPT Document 22 Filed 06/24/2005 Page 2 of 3
Yourrc CONAWAY STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
June 24, 2005
Page 2
Plaintiff will be requesting a hearing quite soon (preferably the first week of
August, 2005) to permit the court to rule by a critical date in October, 2005. Plaintiff believes a
ruling by that time is necessary because a collective of fuel ethanol producers is expected to
close bidding and be in a position to award between October and December an annual supply
agreement for the following calendar year, for a product covered by the patent-in-suit —- either
plaintiff s product or defendants’ product. For the reasons set forth in plaintiffs memorandum
of law in support of the PI motion, which will not be repeated here, plaintiff believes it will be
irreparably harmed if the new annual supply contract is made with defendants. Accordingly,
plaintiff proposes the following schedule on the Pl motion:
Written PI discovery to be served by July l, 2005;
Responses to written Pl discovery to be served, and PI documents to be produced,
by July 8, 2005;
PI depositions (likely dual path depositions) during the week of July ll, 2005;
Defendants’ answering brief in opposition to the PI motion to be tiled on July 25,
2005; `
Plaintiffs reply brief in support of the Pl motion to be filed on August l, 2005,
with concurrent Pl depositions by plaintiff, if necessary, during the period
between July 26 and August l; and
Hearing at a time to be determined by the court, preferably in August.
Defendants believe that plaintiff s Pl schedule is too aggressive and unwarranted,
primarily because plaintiffs proposed schedule would deprive defendants of the opportunity to
fairly prepare their response to the PI Motion. Plaintiffs Pl Motion is supported by the extensive
statements of five witnesses, four of whom performed (or "supervised") extensive biological
experimentation and technical analysis that may take weeks to recreate and properly assess. lt
will be necessary to depose all five declarants to understand what they did, before defendants‘
experts will be in a position to fairly respond. Additionally, it will likely be necessary to depose
one or more of the three inventors named in plaintiffs patent, and to take discovery related to the
alleged experimental results provided to the Patent Office in prosecution of plaintiffs patent
(discussed in plaintiffs comments on the inequitable conduct issue in the PI Motion). Many of
these witnesses will testify in Danish, and many are located outside the US, further complicating
scheduling. Plaintiff waited more than three months to file this PI Motion after filing this case,
well aware of the competitive marketplace (other contracts have been "in play" since the case
was filed); plaintiff presumably waited so long because it took that long to fairly prepare its
position, in which case defendants should have an equal chance to prepare. Accordingly,
defendants propose the following Pl schedule:
Written Pl discovery (to be served by July l, 2005;
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Case 1:05-cv-00160-KAJ-|\/IPT Document 22 Filed 06/24/2005 Page 3 of 3
Youwc CoNAwAY STARGATT & TAYLOR, LLP
The Honorable Kent A. Jordan
June 24, 2005
Page 3
Responses to written Pl discovery to be served, and documents to be produced,
by July 15, 2005;
Pl Depositions to be conducted July 15, 2005 — August 30, 2005;
Defendants’ answering brief in opposition to the Pl motion to be filed on
September 23, 2005;
Plaintiffs depositions, if necessary, during the period between September 14 and
October 6;
Plaintiffs reply brief in support ofthe Pl motion to be filed on October 7, 2005;
and
Hearing at a time to be detennined by the court on a date on or after October 14,
2005.
The parties are prepared to explain their positions on the proposed schedule in
more detail at the telephonic conference set for Thursday, June 30, or to submit those positions in
advance of the conference, as the Court prefers.
Respectfully yours,
Richard H. Morse (#531)
RHM:mmeeh
cc: Clerk, United States District Court (By E—filing and By Hand)
Donald E. Reid, Esquire (By Hand and E-filing)
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