Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01501-KAJ Document 29 Filed 04/04/2005 Page 1 of 2
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The Honorable Kent A. Jordan WESTCHESTQ
United States District Court
844 North King Street
Wilmington, DE t98OI
Re: Future F ibm T ec}:. Pgy. Ltd. ld Ogtellios Izzcorgorated
CA. No. 04-1501-KA]
Dear Judge Jordan:
I have just seen today Mr. Balick’s letter dated March 30, which was sent to the Court
last week when i was out of the country. l regret that this is the second avoidable discovery
dispute that FFT has decided to tile in the short life of this case.
We do oppose the motion principally because we believe that FFT is trying to manipulate
the schedule simply so that they can have it both ways. First, FFT tiled a trade secrets case and
intentionally omitted any claim for patent infringement even though the Complaint makes clear
the point that FFT believes that it has a right of exclusion afforded by patent. Second, FFT
moved to dismiss our counterclaim for non-infringement, thus underscoring a considered
strategy of avoiding litigation over a patent that FFT knows or should know is based upon prior
art. Finally, FFT insisted upon a short discovery schedule and, when altematives were proposed,
moved for relief immediately rather than compromise dates by even one month.
Now it appears FFT has reconsidered,. FFT’s new thinking is that the amendment date Qi
counsel agreed to should be set back until June so that — in the event the motion is denied — FFT
can reverse course and add a claim for infringement. But the state of the record today is the
same as it was when counsel for FFT agreed to the March amendment date. That is, FFT knew
then that our counterclaim had been tiled and no new event has occurred that justifies this
request. Worse yet, it oars repeating that FFT also refused to compromise — even by one month
— the short discovery schedule FFT demanded notwithstanding our prediction that they would be
the tlrst to come running to the Court, as FFT did here, to obtain an extension of its own order.
Under these circumstances, we believe that FFT should be required to honor its agreements and
held to act consistently with its own actions.
Duane Moiuus tw
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Case 1 :04-cv—O1501-KAJ Document 29 Filed O4/O4/2005 Page 2 of 2
April 4, 2005
Page 2
lf there is any prejudice here, it is of FFT’s own making — a natural byproduct of its
convoluted strategy. FFT has had ample time to amend to include patent infringement. Even
more important, in our letter to Mr. Balick dated March 29, we offered to consider permitting
that amendment unopposed should FFT withdraw their challenge to our counterclaim.
Notwithstanding all that, FFT remained unwilling to compromise its plans. Instead of offering to
withdraw their counterclaim pending amendment, FFT insists on trying to win dismissal of our
nondnfringeinent claim while simultaneously preserving its right to sue for the same
infringement that is the very object of that counterclaim. Such an unusual approach underscores
the insubstantiality of FFT’s sole basis for dismissal — that is, that such a claim has been brought
in the absence of "reasonahle apprehension" that FFT would sue to enforce its patent’s rights.
FFT obviously is ready enough now to sue on its patent that it is willing to renege on an
agreement earlier reached between counsel when all known facts were on the table.
On behalf of our client, we ask the Court to enforce the agreed~upon amendment date.
Should the Court decide to do otherwise, then we would ask the Court to reconsider the pending
scheduling proposals with an eye to extending all dates beyond that contained in either proposal.
Doing so would ensure that the parties have adequate time to develop a full record consistent
with major patent litigation cases in the District of Delaware, and hopefully avoid further motion
practice.
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Daniel V. Folt (#3l43)
cc: Clerk of the Court (via ECF File & Serve)
Steven I. Balick, Esquire (via hand delivery)
John G. Day, Esquire (via hand delivery)
Marc B. Tucker, Esquire (via facsimile)
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