Free Motion to Strike - District Court of Delaware - Delaware

Case 1 :04-cv-01231-SLR Document 95 Filed 07/21/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
VERSUS TECHNOLOGY, INC., )
)
Plaintiff, )
) Civil Action No. 94-1231 (SLR)
v. )
)
RADIANSE, INC. , )
)
Defendant. )
VERSUS’S MOTION TO STRIKE RADIANSE REPLY BRIEF
OR FOR LEAVE TO FILE A SURREPLY
Plaintiff Versus Technology, lnc. ("Versus”’) moves the Court to strike the Reply (Dj, 94)
tiled by Defendant Radianse, Inc. (“Radianse") in association with its consolidated motion to
dismiss, for lack of standing, Versus’s infringement claims with respect to U.S. Patents
5,572,195 (“’ 195 patent”) and RE 36,791 (“‘79l patent"). (D.I. 78). In the alternative, Versus
moves the Court for leave to tile a surreply.
Contrary to Local Rule 7. I .3(c)(2), Section A ofthe Radianse’s Reply (D,}. 94) includes
material that could have and should have been included in the opening brief (D.l. 79) to
Radianse’s consolidated motion. (DJ. 78). Radianse attempts to use the July 6, 2005 deposition
of, and document production by, the inventor and president of the licensor of the patents at issue,
Alan C, Heller (“I~Ieller"), as an excuse to advance a new argument inthe final stage ofbriefing.1
The new argument raised in the Radianse Reply is improper and should be struck.
E Radianse argues that 21 negative inference should be drawn from a settlement agreement between Heller and Versus.
Radianse’s settlement theory is not only wrong, it is improper because the settlement documents were produced to
Radianse on April 29, 2005, weii before Radianse tiled any of its motions to dismiss. (See ag., Exhibits B, C, D and
H to Radianse’s Reply). The Heller deposition provides no additional insight into the meaning of these clocnments.

Case 1:04-cv-01231-SLR Document 95 Filed 07/21/2005 Page 2 of 3
After previously tiling separate motions (D.l. 55 and 74 (withdrawn); Radianse
Submitted, rm June 2,4, 2005, a consolidated motion to dismiss two of the four patents in suit,
arguing that Versus lacks standing to sue Radianse for infringement despite Versus’s possession
of an exclusive license to these two patents. (D1. 78). None of Radianse’s prior motions or
associated briefs, not Versus’s opposition briefs, raised the settlement agreement now argued by
Radianse in its recent Reply as a basis to narrowly construe Versus’s exclusive rights.
Additionally, in sections A and B of its Reply, Radianse iniscliaracterizes Mr. Heller’s
testimony and misccmstmes the exclusive license in light of Mr. Heller’s testimony. Radianse
had the jnmmjmi to take Mr. I-leller’s deposition well before it tiled its consolidated motion. if
Radianse wanted to use Mr. Heller’s testimony to support its motion, Radianse should have
waited to file it until after the deposition. Radianse cannot be permitted to sneak its
characterization of Mr. Heiler’s testimony into a new argument of a final and unanswerable brief.
ln view of the foregoing, Versus respectfully requests that the Court strike sections A and
B of Radianse’s Reply, or in the alternative, grant Versus leave to file the surieply, attached
hereto as Exhibit l.
Respectfully Submitted,
DATED: July 2l., 2005 /si/' James M. Lennon
George Pazuniak (DE #478)
James M. Lennon (DE #457 0)
CONNOLLY, BOVE, LODGE & HUTZ, LLP
l007 North Orange Street
P.O. Box 2207
Wilmington, DE 19899
Telephone: (302) 658—9i4l
Attorneys for Ploirztyjf Versus Technology, Inc.
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Case 1:04-cv-01231-SLR Document 95 Filed 07/21/2005 Page 3 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
CERTIFICATE OF SERVICE
J hereby certify that on July 2l, 2005, l electronically filed this VERSUS’S MOTION TO
STRIKE RADIANSE REPLY BRIEF OR FOR LEAVE TO FILE A SURREPLY with the Clerk
of the Court using CMHEZCF which will send electronic notification of such tiling to the
following, who is also SERVED BY HAND on this date:
Josy W. Ingersoll (#1088)
[email protected]
YOUNG CONAWAY STARGATT
& TAYLOR LLP
The Brandywine Building
1000 West Street, 17th Floor
PO. Box 39}
Wilmington, DE 19899-039l
(302) 571-6600
Counsel for Defendant, Rczdicmse, Inc.
I hereby certify that on this date, I electronically mailed the documents to the following
nornregistered participants:
Sibley P. Reppert
[email protected]
LAHIVE &: COCKFIELD
28 State Street
Boston, MA 02109-l784
(617) 227-7400
C0—Courzself0r Defendant, Raditmse, Inc.
DATE: July 21, 2005 /s/ James M. Lennon
James M. Lennon (#4570)
CONNOLLY BOVE LODGE & HUTZ, LL]?
The Nemours Building
I007 North Orange Street
P.O. Box 2207
Wilmington, DE 19899
(302) 888-6271
toms Attorrzeysfor Plaintwf Versus Techno/ogy, Inc.