Free Declaration in Support - District Court of California - California

Case 3:07-cv-02385-PJH

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Filed 03/20/2008

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M C D ERMOTT W ILL & E MERY LLP

MCDERMOTT WILL & EMERY LLP William G. Gaede III (136184) 3150 Porter Drive Palo Alto, CA 94304-1212 Telephone: (650) 813-5000 Facsimile: (650) 813-5100 Attorneys for J.R. Carlson Laboratories, Inc. and Metagenics, Inc.

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

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NORDIC NATURALS, INC. Plaintiff, v J.R. CARLSON LABORATORIES, INC. and METAGENICS, INC. Defendants. AND RELATED COUNTERCLAIMS

Case No. C-07-02385 PJH DECLARATION OF BRIAN L. BAKER IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE STEELE DECLARATION

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MPK 139855-1.062114.0123

Honorable Phyllis J. Hamilton

I, Brian L. Baker, declare as follows: 1. I am an attorney with McDermott Will & Emery LLP, counsel for Defendants, J.R.

Carlson Laboratories, Inc. and Metagenics, Inc., in the above-captioned matter. 2. I am submitting this declaration in support of Defendants' Opposition to Plaintiff's

Motion to Strike Declaration of Donald R. Steele. 3. I have knowledge of the following, and if called as a witness, could and would

testify competently to the contents herein.

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BAKER DECL. IN SUPPORT OF DEFTS' OPP'N TO MOT. TO STRIKE CASE NO. C-07-02385 PJH

Case 3:07-cv-02385-PJH

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M C D ERMOTT W ILL & E MERY LLP

4.

Attached as Exhibit A is a true and correct copy of the Declaration of Donald R.

Steele in Support of Defendants' Claim Construction Brief and Opposition to Plaintiff's Claim Construction Brief. 5. At the present time, other than the publicly-available file histories of the patents-

in-suit, Plaintiff has not provided any documents related to the prosecution of the patent applications leading to the patents-in-suit or related applications, despite Defendants' requests for all such documents. 6. Attached as Exhibit B are two pages recently obtained by me and printed from the

official government website for the U.S. Patent and Trademark Office ("USPTO"). These pages show that Joar Opheim, the inventor of the patents-in-suit, filed a continuation application, 10/646,898, on August 22, 2003, which is a continuation of application 10/292,999 (US Patent 6,641,837), which is a continuation of application 10/041,877 (US Patent 6,652,879), which is a continuation of application 09/416,017 (US Patent 6346,231). 7. Attached as Exhibit C is a true and correct copy printed from the USPTO website

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of a September 25, 2006, Declaration Under 37 C.F.R. Section 1.132 related to the 10/646,898 application in which Joar Opheim declares that Nordic Naturals is the assignee of the application. 8. Attached as Exhibit D is a true and correct copy printed from the USPTO website

of pages 1-3, 7-9 of Plaintiff's January 31, 2008 Response to the Office Action by the Patent Office Examiner dated July 31, 2007. 9. Attached as Exhibit E is a true and correct copy printed from the USPTO website

of pages 1 and 6-8 of Plaintiff's June 11, 2007 Response to the Office Action by the Patent Office Examiner dated December 12, 2006. 10. Attached as Exhibit F is a true and correct copy of pages of Carlson's Initial

Disclosures, served on Plaintiff on August 15, 2007. 11. Attached as Exhibit G is a true and correct copy of pages DEFCAR00000022-23

from Defendants' document production served on Plaintiff on October 30, 2007.

MPK 139855-1.062114.0123

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BAKER DECL. IN SUPPORT OF DEFTS' OPP'N TO MOT. TO STRIKE CASE NO. C-07-02385 PJH

Case 3:07-cv-02385-PJH

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M C D ERMOTT W ILL & E MERY LLP

I declare, under penalty of perjury, under the laws of the United States, that the foregoing is true and correct and that this Declaration was completed at Palo Alto, California this 20th day of March 2008.

/ s / Brian L. Baker Brian L. Baker

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MPK 139855-1.062114.0123

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BAKER DECL. IN SUPPORT OF DEFTS' OPP'N TO MOT. TO STRIKE CASE NO. C-07-02385 PJH