Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01338-JJF

Document 1137

Filed 08/08/2008

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FIRM and AFFILIATE OFFICES NEW YORK LONDON SINGAPORE LOS ANGELES CHICAGO HOUSTON HANOI PHILADELPHIA SAN DIEGO SAN FRANCISCO BALTIMORE BOSTON WASHINGTON, DC LAS VEGAS ATLANTA MIAMI PITTSBURGH NEWARK BOCA RATON WILMINGTON PRINCETON LAKE TAHOE HO CHI MINH CITY

D. JOSEPH ENGLISH DIRECT DIAL: 202.776.5228 PERSONAL FAX: 202.478.0667 E-MAIL: [email protected] www.duanemorris.com

August 8, 2008 The Honorable Vincent J. Poppiti Blank Rome LLP 1201 Market Street, Suite 800 Wilmington, Delaware 19801-2535 Re: Honeywell International Inc., et al. v. Apple Computer, Inc., et al. C.A. No. 04-1338 KAJ (consolidated)

Dear Judge Poppiti: In response to Honeywell's letter of August 7, 2008 regarding the term "hits" and its attempt to identify new accused products, Audiovox Communications Corp. ("ACC") submits that the products identified by Honeywell as being associated with Audiovox should be excluded as accused products of ACC. ACC agrees with the position set forth by Sony Ericsson in its submission of August 4, 2008 that the deadline for the identification of accused products was in 2005. Additional reasons for excluding the new "hits" associated by Honeywell with Audiovox are set forth below. Honeywell identified the term "hits" to include two cell phones that may be associated with ACC or Audiovox Electronics Corp. ("AEC"), but admits that there is some question as to this association (Honeywell letter, fn 1). Honeywell's representation that it communicated the identity of these phones to counsel for ACC on August 29, 2007 is not accurate as the identity of these phones was not communicated to ACC until only three weeks ago. Honeywell relies on a letter dated August 29, 2007 to William F. Taylor of the firm McCarter & English (Honeywell letter, Tab 4) as providing notice to ACC. Although Mr. Taylor represents AEC in this case, he does not represent ACC, nor does any other attorney at McCarter & English.1 The first time this letter was communicated to ACC or its counsel was on July 17, 2008. Thus these products should be excluded as accused products of ACC because the products were not specifically identified to ACC until July 17, 2008, long after any reasonable deadline.

1

Duane Morris has represented ACC since early 2005, and Honeywell's prior correspondence regarding ACC's accused products in this case has been directed to Duane Morris.
D UANE M ORRIS LLP
505 9TH STREET, N.W., SUITE 1000 WASHINGTON, D.C. 20004-2166 PHONE: 202.776.7800 FAX: 202.776.7801

Case 1:04-cv-01338-JJF

Document 1137

Filed 08/08/2008

Page 2 of 2

The Honorable Vincent J. Poppiti August 8, 2008 Page 2

Moreover, although Honeywell did not identify the supplier of the phones it analyzed in 2007, it is highly unlikely that ACC was the supplier. ACC sold its communications business in 2004 and has not sold any phones since then. ACC has licensed the use of its Audiovox trademark on phones, and there have been phones in market since 2004 bearing the Audiovox mark. However, ACC is not liable for patent infringement arising from the sale of phones by others using the Audiovox mark. Please let us know if we can provide any additional information.

Very truly yours, /s/ D. Joseph English D. Joseph English DJE/jks cc: Counsel of Record (by e-filing and email)

DM2\1532167.1