Free Motion to Amend/Correct - District Court of Delaware - Delaware

Case 1:04-cv-01337-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
_____________________________________ ) HONEYWELL INTERNATIONAL INC, ) and HONEYWELL INTELLECTUAL ) PROPERTIES INC., ) ) Plaintiffs, ) ) v. ) ) AUDIOVOX COMMUNICATIONS CORP., ) AUDIOVOX ELECTRONICS CORP., ) NIKON CORPORATION, NIKON INC., ) NOKIA CORPORATION, NOKIA INC., ) SANYO ELECTRIC CO., LTD., ) and SANYO NORTH AMERICA, ) ) Defendants. ) )

C.A No. 04-1337-KAJ

DEFENDANT AUDIOVOX COMMUNICATIONS CORP.'S MOTION FOR LEAVE TO AMEND THIRD-PARTY COMPLAINT Defendant Audiovox Communications Corp. ("ACC") respectfully requests the Court's leave to file the First Amended Third-Party Complaint (attached hereto as Exhibit "A"; red-lined version attached hereto as Exhibit "B") against current Third-Party Defendants Curitel Communications, Inc. and Toshiba Corporation and proposed Third-Party Defendants High Tech Computer Corp. and Wistron Corporation (collectively, "Third-Party Defendants").

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Honeywell International, Inc. and Honeywell Intellectual Properties, Inc. (collectively, "Honeywell") filed this action against ACC and others alleging infringement of U.S. Patent No. 5,280,371 (the "Honeywell Patent") directed to liquid crystal displays ("LCDs"). ACC neither manufactures LCD's or LCDcontaining devices. ACC is a pure retailer of LCD-containing devices

purchased from the Third-Party Defendants.1 Each of the Third-Party Defendants is contractually obligated to indemnify ACC against claims of patent infringement and liability resulting therefrom arising from ACC's sale of the products supplied by the Third-Party Defendant. Consequently, the Third-Party Defendants are liable to ACC for ACC's alleged infringement of the Honeywell Patent. The Third-Party

Defendants are also liable to ACC for all expenses incurred in defending itself against Honeywell's claims. ACC previously filed a Third-Party Complaint against Curitel Communications and Toshiba. Amending the Third-Party Complaint to add High Tech Computer Corp. and Wistron Corporation as Third-Party Defendants will not substantially delay this case because the period for discovery has not opened. Impleading these additional Third-Party Defendants
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ACC also purchases LCD-containing devices from Sharp Corporation. ACC has been advised by Sharp Corporation that its products supplied to ACC are licensed under the Honeywell Patent. 2

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will facilitate full discovery of the facts relevant to Honeywell's claims against ACC because the Third-Party Defendants are in a better position to provide relevant technical information and documentation regarding the LCDs contained in the devices manufactured by the Third-Party Defendant. WAIVER OF RIGHT TO FILE A BRIEF Pursuant to D. Del. L.R. 7.1.2, ACC believes that, because of the nature of this Motion to Stay, no formal briefing is required, and ACC hereby waives its right to file a brief. STATEMENT PURSUANT TO LOCAL RULE 7.1.1 Pursuant to D. Del. L.R. 7.1.1, counsel for ACC state that they are unable to reach agreement with opposing counsel permitting the unconditional filing of the proposed First Amended Third-Party Complaint. WHEREFORE, ACC respectfully requests that the Court grant ACC leave to file the attached First Amended Third-Party Complaint.

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DATED: May 12, 2005

DUANE MORRIS LLP /s/ John L. Reed John L. Reed (Del. I.D. No. 3023) Matt Neiderman (Del. I.D. No. 4018) 1100 N. Market Street, 12th Floor Wilmington, Delaware 19801 Tel: 302.657.4900 Fax: 302.657.4901 E-Mail: [email protected] [email protected]

OF COUNSEL: D. Joseph English L. Lawton Rogers DUANE MORRIS LLP 1667 K Street, N.W., Suite 700 Washington, DC 20006 Tel: 202.776.7800 Fax: 202.776.7801 E-Mail: [email protected] [email protected]
WLM\208377.1

Attorneys for Defendant Audiovox Communications Corp.

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