Free Memorandum in Opposition - District Court of California - California

Case 5:03-cv-04669-JW

Document 266

Filed 10/06/2004

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Gary M. Hoffman (Pro Hac Vice) Kenneth W. Brothers (Pro Hac Vice) DICKSTEIN SHAPIRO MORIN & OSHINSKY, LLP 2101 L Street, NW Washington, DC 20037-1526 Phone (202) 785-9700 Fax (202) 887-0689 Edward A. Meilman (Pro Hac Vice) DICKSTEIN SHAPIRO MORIN & OSHINSKY, LLP 1177 Avenue of the Americas New York, New York 10036-2714 Phone (212) 835-1400 Fax (212) 997-9880 Jeffrey B. Demain, State Bar No. 126715 Jonathan Weissglass, State Bar No. 185008 ALTSHULER, BERZON, NUSSBAUM, RUBIN & DEMAIN 177 Post Street, Suite 300 San Francisco, California 94108 Phone (415) 421-7151 Fax (415) 362-8064 Attorneys for Ricoh Company, Ltd.

14 15 16 17 18 19 20 21 22 23 24 25 RICOH COMPANY, LTD., Plaintiff, vs. AEROFLEX INCORPORATED, et al., Defendants ________________________________________ ) ) ) ) ) ) ) SYNOPSYS, INC., ) Plaintiff, ) vs. ) RICOH COMPANY, LTD., ) Defendant. ) ________________________________________ ) CASE NO. C-03-2289-MJJ (EMC) CASE NO. C-03-4669-MJJ (EMC) RICOH'S OPPOSITION TO SYNOPSYS, INC.'S AND DEFENDANTS' MOTION TO SHORTEN TIME FOR HEARING ON MOTION REQUESTING EQUAL PRESENTATION TIME AT TUTORIAL Date: To Be Determined Time: To Be Determined Courtroom: 11 Judge: Judge Jenkins UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

RICOH'S OPPOSITION TO MOTION TO SHORTEN TIME Case No. CV-03-4669-MJJ (EMC) and CV03-2289-MJJ (EMC) DOCSNY.123782.1

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Defendants Aeroflex Incorporated et al. and Synopsys, Inc. (collectively Defendants) have requested this Court to shorten the time for briefing and a hearing on their motion titled "Motion Requesting Equal Presentation Time At Tutorial". Ricoh Company, Ltd. (Ricoh) does not object to shortening the time but respectfully submits that the dates proposed by Defendants are unreasonable and should be modified. A tutorial is currently scheduled for October 20, 2004. It has been apparent since the hearing with this Court on July 14, 20041 that Defendants intended to make a presentation at the tutorial under any circumstances. The interactions between the parties will be discussed in connection with the motion itself but in summary, the current situation is that only two (2) individuals were ever proposed to be a "neutral expert" and investigation has shown that both of these individuals were sufficiently associated with one or another of the parties to take them out of that category. Ricoh has attempted to prepare the tutorial to be as neutral and unbiased as possible. It presented Defendants with a highly detailed description of what it intended to present at the tutorial2 while Defendants presented Ricoh with a bare bones list of bullet points3 of the information they intended to present. On numerous occasions,

in writing and during telephone conversations, Ricoh asked Defendants to identify what aspects of Ricoh's proposed presentation was allegedly biased and/or constituted claim construction assertions but Defendants never responded, instead choosing to explain their contentions for the very first time in the motion filed late

In the hearing, Defendant argued for the right to present extrinsic testimony during the Markman hearing. 2 Ricoh's outline was annotated with citations to the specifications of the `432 patent. 3 Although the parties had agreed to provide citations to the specification of the `432 patent to support the outline, Defendants provided no such citations. Ricoh has repeatedly requested the information from the Defendants but Defendants have failed to provide it.
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last night. Ricoh has offered to identify all of the extrinsic evidence (which this Court has said would not be permitted) contained in Defendants' outline but Defendants have refused to even consider accepting and then discussing such information. Ricoh also proposed that each party identify the other's items that were acceptable, were acceptable with revision, and were unacceptable. Defendants also rejected this offer. Instead, Defendants have demanded that Ricoh agree to give the Defendants a 100% veto right over any information that Ricoh wanted to include in the presentation being made by Ricoh. Defendants have thus refused to cooperate with Ricoh in preparing the tutorial. It will be Ricoh's position that, inter alia, Defendants have failed to hold a proper meet and confer about the tutorial, as set forth, for instance, in Ricoh's letter of October 4, 2004 (submitted herewith but omitted from Defendants' submission). With respect to the request to shorten the time, Defendants obviously began preparing the main motion more than one week ago. Thus, on September 28, 2004, Defendants told Ricoh "we will seek relief from the Court" (letter submitted as Mavrakakis motion Exhibit BB, page 2). On October 1, 2004, Defendants stated "we will seek an order from the Court that precludes Ricoh from presenting expert testimony on claim construction at the tutorial and that allows Synopsys and Defendants equal time on October 20, 2004 to make their own presentation at the tutorial" (letter submitted as Mavrakakis motion Exhibit DD). Nevertheless, Defendants delayed filing their motion until very late yesterday at 10:20 P.M. (local time). Defendant's papers were not transmitted to Ricoh's counsel on the East Coast until after 2:00 A.M. (East Coast time) on October 6, 2004.

RICOH'S OPPOSITION TO MOTION TO SHORTEN TIME Case No. CV-03-4669-MJJ (EMC) and CV03-2289-MJJ (EMC) DOCSNY.123782.1

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Given that Defendants delayed in making this motion for more than one week, to demand Ricoh respond within two (2) days is respectfully submitted to be unreasonable. Ricoh submits that it should be allowed equal time to respond. Ricoh respectfully submits that its opposition brief to the motion should, in light of the fact that Monday is a Federal holiday, be due on October 13, 2004 (four business days from now) with the hearing thereafter at the end of the week. Since Defendants have waived their right to a reply brief, receipt of Ricoh's opposition a day or two before the hearing does not prejudice Defendants.

Dated: October 6, 2004

Respectfully submitted, Ricoh Company, Ltd. By: /s/ Kenneth Brothers Jeffrey B. Demain, State Bar No. 126715 Jonathan Weissglass, State Bar No. 185008 ALTSHULER, BERZON, NUSSBAUM, RUBIN & DEMAIN 177 Post Street, Suite 300 San Francisco, California 94108 Phone: (415) 421-7151 Fax: (415) 362-8064 Gary M. Hoffman Kenneth W. Brothers DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP 2101 L Street NW Washington, D.C. 20037-1526 Telephone: (202) 785-9700 Facsimile: (202) 887-0689

RICOH'S OPPOSITION TO MOTION TO SHORTEN TIME Case No. CV-03-4669-MJJ (EMC) and CV03-2289-MJJ (EMC) DOCSNY.123782.1

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RICOH'S OPPOSITION TO MOTION TO SHORTEN TIME Case No. CV-03-4669-MJJ (EMC) and CV03-2289-MJJ (EMC) DOCSNY.123782.1

Edward A. Meilman DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP 1177 Avenue of the Americas New York, New York 10036 Telephone: (212) 896-5471 Facsimile: (212) 997-9880 Attorneys for Ricoh Company, Ltd.

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