Free Stipulation - District Court of Colorado - Colorado

Case 1:04-cv-01769-MSK-CBS

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Filed 11/16/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:04-cv-01769-MSK-CBS A MAJOR DIFFERENCE, INC., a Colorado corporation, Plaintiff, v. ERCHONIA MEDICAL, INC., an Arizona corporation, ERCHONIA MEDICAL LASERS, L.L.C., an Arizona limited liability company, ERCHONIA PATENT HOLDINGS, L.L.C., an Arizona limited liability company, Defendants. ERCHONIA MEDICAL, L.L.C., an Arizona limited liability company, ERCHONIA MEDICAL, INC., an Arizona corporation, Counter-Claimants and Third-Party Plaintiffs, v. A MAJOR DIFFERENCE, INC., a Colorado corporation, ROBERT E. MORONEY, an individual, ROBERT E. MORONEY, L.L.C., a Colorado limited liability company, MIKI SMITH, an individual, KMS MARKETING, INC., a Colorado corporation, and STARGATE INTERNATIONAL, INC., a Colorado corporation, Counter-Defendants and Third-Party Defendants.

STIPULATED PROPOSED ORDER OF PRESENTATION OF PROOF AND ARGUMENT FOR NOVEMBER 17-18, 2005 MARKMAN HEARING

Case 1:04-cv-01769-MSK-CBS

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I.

PROPOSED ISSUES TO BE RESOLVED In preparation for the hearing set to commence at 9:00 a.m. on November 17, 2005, the

parties jointly state that the following terms and phrases of asserted claims in U.S. Patent No. 6,746,473 ("the '473 Patent") must be construed by the Court pursuant to Markman v. Westview Instr., Inc., 52 F.3d 967 (Fed. Cir. 1995):


optical arrangement; attached; transforming each of the laser beams; desired; and substantially linear.

These issues are further clarified and delineated in the Joint Annotated Claims Chart attached as Exhibit 1. In that chart, the original '473 Patent claim language is set forth in the left hand column with the disputed claim language in bold and italics. The middle and right hand columns display the proposed claim language for each side, with the parties in the position of Plaintiff highlighted in yellow and the parties in position of Defendant highlighted in blue. II. PROPOSED ORDER AND PROCEDURE FOR PRESENTATION OF EVIDENCE AND ARGUMENT The parties propose that there be no opening statements. Instead, the parties propose that they open the Markman hearing with a presentation of evidence, concluding with closing argument. A copy of the parties' Joint Witness List is attached as Exhibit 2. The parties will submit two copies of this Joint Witness List to the Courtroom Deputy Clerk prior to the hearing. The parties also note that they wish to present evidence of Michael Robinson, the Fed. R. Civ. P. 30(b)(6)

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representative of Diode Laser Concepts, Inc., in the form of deposition testimony. Two bound copies of that deposition testimony will be provided to the Courtroom Deputy Clerk prior to the hearing, and the parties will each advise the Court of the desired sequence for review of that testimony during presentation of evidence. A copy of the parties' Joint Exhibit List is attached as Exhibit 3. The parties will submit two copies of this Joint Exhibit List to the Courtroom Deputy Clerk prior to the hearing. The parties have stipulated to the admissibility of all proposed exhibits. Two sets of all stipulated exhibits will be provided to the Courtroom Deputy Clerk prior to the hearing. Finally, the parties propose that they provide argument on the claim construction issues by way of closing, which the parties propose be limited to 45 minutes per side. The parties have further agreed that Plaintiff A Major Difference, Inc. may divide its time between a primary and rebuttal argument. WHEREFORE, the parties propose that the Markman hearing proceed as outlined above or in any other way that the Court deems just and appropriate.

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Respectfully submitted this 16th day of November, 2005. s/ Benjamin B. Lieb Robert R. Brunelli Benjamin B. Lieb SHERIDAN ROSS P.C. 1560 Broadway, Suite 1200 Denver, Colorado 80202 (303) 863-9700 Attorneys for Plaintiff, Counter-Defendants and Third-Party Defendants s/ John R. Mann John R. Mann Charles R. Ledbetter Valerie A. Garcia
KENNEDY CHRISTOPHER CHILDS & FOGG, P.C.

1050 17th Street, Suite 2500 Denver, Colorado 80265 (303) 825-2700 (303) 825-0434 FAX Richard L. Gabriel David O. Seeley HOLME ROBERTS & OWEN LLP 1700 Lincoln Street, Suite 400 D.C. Box No. 07 Denver, Colorado 80203 Telephone: (303) 861-7000 Telecopier: (303) 866-0200 Ira Schwartz
DeCONCINI McDONALD YETWIN & LACY, P.C.

7310 N. 16th Street, Suite 330 Phoenix, Arizona 85020 (602) 282-0500 Attorneys for Defendants, Counterclaimants and Third-Party Plaintiffs
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