Free Declaration in Support - District Court of California - California

Case 3:07-cv-02385-PJH

Document 48-9

Filed 02/19/2008

Page 1 of 3

Case 3:07-cv-02385-PJH

Document 48-9

Filed 02/19/2008

Page 2 of 3

February 1. 20133

James E. GIore 755 Ernbarcadero Road a h hito, CA 94303

Dear Jim: We are surprised and disappoi~~ted your January 3 1,2008 letter rejecting our proposal by iate to amending and updating the evidence contained in ent. As you know, D lerfns,but rather to i m e constructions. It is ifficuit for us lo understand your assefiion that arc '-highly impro nd "prejudicial" to Plaintiff under any circwnsta~ccs. espccialiy in light oftthe Fdct that you have lacnitm'e~ address the to evidence: your initial claim construction brief. your opposition to Defendants' brief, and your repi) bricf. Moreover, according to your letter, \iou do not object to a alterations and additions to the e\ idence idendfled in the Joint Claim Construction, only the es we propose. Specifically. "to thc cstent a s citation has already been prot ided fo ition is lo correct ious clerical or typog to its use. or the use of a su include, howex er,

Case 3:07-cv-02385-PJH

Document 48-9

Filed 02/19/2008

Page 3 of 3

James E. G o r e Page 2

er

one line (column 1. line 20) from the s eeification of the -33 1 patent that was not previouslq listed in the ekidence chart; ditionai pages from . K. Wiikinson eI a1., ,Yofigels. 1t$i1utz!fitclurin,o Cou2siderariorzs, Drz4g.s and the Phara~rrceurical Sciences, 41 (Spcciaiized Drug Delivery Systems), P.Tyle, Ed. (Marcel Dekkerl Inc.. Neu Uork, 19901, although the reference itself and page 31 9 of the reference were previously disclosed in the list of evidence and in our October 29, 2007 invalidity contentions; one page from Remin,q~on f%armucez~iical 's Scicinces, a treatise specificaily referenced in at least t h e e of'the prior art patcnts discusscd by i'iaintil'f during prosecution of' the patents-in-suit; two dictionary deiinitions ii-om ? f r ~ h s 'scXesv tVorfd Colleg a single subsection of the Code of Federal Regulations that addsesses the meaning e t e r n "flavor."

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With t l ~ e exception of the nitions and the C.F. . subsection, all of the intiff or has been known t ou for several months at a above e.i+knce .ix as either cre ictionary definitions for "ilavor" or "taste" in minimum. Ar,d although you did your list of evidence, it has long b hat the ineanil~gs rhese words is a matter of of dispuxe Setwccn the ere can be no Legitimate claim of sil rise or prejudice resulting from our minor mendrnents to the evidence for claim construction.

a Your refitsal to stipulate to a~nending d updating the evidence for claim construction ther evaluation ofthe issues on the merits. bur rather requires the ncedless of time and resources by bofh parties, with no bcne t to you. We will submit the part of our claim constmction and move to amend t Joint Claim C'onstmcrion and tatement to include it. In this way. the Court mill have a complete record o make a reasoned judicial determination.
Sincerely.