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

Case 1:04-cv-01532-KAJ

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE INGENIO, FILIALE DE LOTOQUEBEC, INC., Plaintiff, v. GAMELOGIC, INC. and SCIENTIFIC GAMES CORPORATION, Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 04-1532 (KAJ)

DEFENDANT GAMELOGIC, INC.'S OPPOSITION TO INGENIO'S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT GameLogic, Inc. opposes plaintiff Ingenio's Motion for Leave to File First Amended Complaint (D.I. 53) on the ground that the proposed amendment is untimely, and Ingenio has not given - and apparently cannot give - any justification for its belated amendment. Ingenio is not free to ignore this Court's Scheduling Order. As described at length in GameLogic's October 31, 2005 Motion for Leave to File Amended Answer and Counterclaims (D.I. 49), and in its proposed counterclaims for abuse of process and unfair competition, Ingenio has not brought this suit to vindicate its patent rights. Instead, Ingenio is using the suit as a competitive weapon against GameLogic, a new and much smaller player in the gaming industry. See Motion for Leave to File Amended Answer and Counterclaims at 3 (giving one example of Ingenio's use of the mere fact of the litigation to drive away GameLogic's potential customers). Ingenio's failure to actively pursue its claims is evidence of its ulterior motive. See id. at 1-2 (describing Ingenio's stalling and total lack of initiative in

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discovery). Ingenio's failure to seek timely leave to amend its complaint is of a piece with its more general failure to pursue its case. Moreover, there appears to be no good reason for Ingenio's failure to comply with the Court's Scheduling Order. GameLogic is informed and believes that Scientific Games demonstrated its ScreenPlay product at a September 2005 trade show (not an October 2005 tradeshow as suggested in Ingenio's motion). See Declaration of Steve Saferin (D.I. 64) ¶ 4. Regardless, even Ingenio admits that its counsel investigated ScreenPlay prior to the October 31, 2005 amendment deadline. Although Ingenio contends that its "investigation was not complete" until after the deadline, the evidence is contrary. See Declaration of Rodger D. Smith II (D.I. 65) Ex. I (transcription of October 27, 2005 voicemail message from Ingenio's counsel regarding its desire to "amend the current Complaint to include allegations relating to the new [Scientific Games] product"). The substance of Ingenio's proposed amendment--specific allegations about Scientific Games's ScreenPlay product--is admittedly an issue between Ingenio and Scientific Games. But Ingenio's behavior in this case (and particularly its use of the suit for purely competitive purposes) does concern GameLogic. Given Ingenio's conduct in the litigation to date, and its failure to make a factual showing about why it should not be required to comply with the amendment deadline set by the Court, GameLogic must oppose Ingenio's request for leave to file an untimely amendment to the Complaint.

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POTTER ANDERSON & CORROON LLP

OF COUNSEL Gary M. Hnath Susan Baker Manning BINGHAM MCCUTCHEN LLP 1120 20th Street NW, Suite 800 Washington, DC 10036 (202) 778-6150 Dated: November 30, 2005

By: /s/ David E. Moore Richard L. Horwitz (#2246) David E. Moore (#3983) Hercules Plaza, 6th Floor 1313 N. Market Street P.O. Box 951 Wilmington, Delaware 19801 Tel: (302) 984-6000 [email protected] [email protected] Attorneys for Defendant GameLogic, Inc.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CERTIFICATE OF SERVICE I, David E. Moore, hereby certify that on November 30, 2005, the attached document was hand delivered to the following persons and was electronically filed with the Clerk of the Court using CM/ECF which will send notification of such filing(s) to the following and the document is available for viewing and downloading from CM/ECF: Edmond D. Johnson Thomas H. Kovach The Bayard Firm 222 Delaware Avenue, Suite 900 P.O. Box 25130 Wilmington, DE 19899 Jack B. Blumenfeld Roger D. Smith Morris Nichols Arsht & Tunnell Chase Manhattan Centre, 18th Floor 1201 North Market Street P.O. Box 1347 Wilmington, DE 19899-1347

I hereby certify that on November 30, 2005, I have Federal Expressed the documents to the following non-registered participants: Rodger L. Tate Brian M. Buroker Christopher J. Cuneo Hunton & Williams LLP 1900 K Street, N.W., Suite 1200 Washington, DC 20006

By: /s/ David E. Moore Richard L. Horwitz David E. Moore Hercules Plaza, 6th Floor 1313 N. Market Street Wilmington, Delaware 19899-0951 (302) 984-6000 [email protected] [email protected]
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