Free Letter - District Court of Delaware - Delaware

Case 1:04-cv—01373-KAJ Document 477 Filed 10/30/2006 Page 1 of 2
MoRR1s, NICHOLS, ARSHT 86 TUNNELL LLP
1201 NORTH MARKET STREET
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WILMINGTON, DELAWARE 19899-1347
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.]Acr< B. BLUMENFELD
M gm ml o6t6b6r 20, 2006
302 425 2012 FAX
jblumenfe][email protected]
BY ELECTRONIC FILING
The Honorable Kent A. Jordan
United States District Court
844 King Street
Wilmington, DE 19801
RE: Ampex v. Eastman Kodak, C.A. No. 04-1373-KAJ
Dear Judge Jordan:
This is Ampex’s response to defendants’ October 30, 2006 letter to the Court, in
comrection with the Court’s October 26, 2006 Claim Construction Order and Memorandum
Opinion, and defendants’ pending Motion For Summary Judgment of Noninfringement.
At page 2 of its letter, Defendants quote incorrectly from page 29 of Ampex’s
Opposition (D.I. 366), asserting that Ampex admitted that it could not demonstrate literal
infringement "[i]f Defendants’ proposed construction for the ‘said data’ limitations is adopted."
In fact, Ampex’s brief states:
"If Defendants’ proposed construction for the ‘said data’ limitations is
adopted, the Kodak digital cameras store at least the equivalent of ‘said data’ on a
memory card." (Emphasis supplied)
In using the phrase "at least," Ampex was referring to the fact that, under
defendants’ construction of "said data," for Claim ll, there is nevertheless literal infringement,
or at least a genuine fact issue of whether there is literal infringement. (D.I. 366, p. 28). Claim
ll has different wording and arrangement than the rest of the asserted claims, because it does not
require "the data" — but rather the "image" - to be stored in the "bulk storage" memory. Ampex
submits that, now that the Court has construed the claims without construing "image" in any way
relevant to the issue raised in these letters, the jury should be permitted to determine literal
infringement of at least claim ll.
Moreover, there are genuine issues of fact as to whether the claims are infringed
under the doctrine of equivalents. The all-elements rule is inapplicable to this issue. (D.I. 366,
p. 34). There is no "Fest0" issue at all with respect to claims ll, 12, 13 and 15. (D.I. 366, p.

Case 1:04-cv—01373-KAJ Document 477 Filed 10/30/2006 Page 2 of 2
The Honorable Kent A. Jordan
Page 2
October 30, 2006
32). ln addition, as to the claims where Festo arguably applies, Ampex has demonstrated that
the exceptions to F est0 apply to these circumstances. (D.l. 366, p. 33).
Respectfully,
/s/ Jack B. Blumenfeld (#1 014)
Jack B. Blumenfeld (#1014)
JBB/bls
cc: Peter T. Dalleo, Clerk (By Electronic Filing)
Collins J. Seitz, Jr., Esquire (By Electronic Filing)
Michael J. Summersgill, Esquire (By Electronic Filing)
Norman H. Beamer, Esquire (By Email)
J. Jesse Jenner, Esquire (By Email)
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