Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00204-JJF

Document 262

Filed 06/17/2005

Page 1 of 1
Suite 1100 919 N. Market Street p.o. Box 1114 Wilmington, Delaware 19899-1114 Telephone 302 652-5070

Fish & Richardson p.c.
Frederick P. Fish 1855-1930 W.K. Richardson 1859-1951

June 17, 2005 VIA ECF The Honorable Joseph J. Farnan, Jr. United States District Court for the District of Delaware 844 King Street Wilmington, DE 19801 Re: Kyphon Inc. v. Disc-O-Tech Medical Technologies, et al. C.A. No. 204-JJF

Facsimile 302 652-0607 Web Site www.fr.com

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boston dallas delaware new york san diego silicon valley twin cities washington, dc

Dear Judge Farnan: This letter on behalf of Kyphon concerns a witness availability issue with regard to the second trial concerning validity issues. After review of the guidance the Court provided during yesterday's conference concerning expected scheduling of the infringement and validity trials, Kyphon wishes to advise of a potential issue regarding Dr. Halliday's testimony. Dr. Halliday is an orthopedic surgeon that Kyphon anticipates presenting as a third-party witness for brief direct testimony of approximately 20 minutes. She has cleared sufficient time from her practice to fly from Oregon to Delaware and appear at trial next week. Unfortunately, because she has surgeries scheduled on Friday (June 24th) and early in the following week starting Monday, June 27th, she is limited to testifying only on Wednesday (if the jurors' deliberations are completed early in the day) or anytime on Thursday before 3:00 p.m. EST (when she needs to depart for the airport). Because there is a chance that DOT may not have completed its validity case on Thursday, Kyphon wishes to note this scheduling issue. However, Kyphon anticipates that the parties should be able to address this issue cooperatively and, if necessary, present Dr. Halliday's testimony out of order on Thursday at some convenient time.1 Respectfully submitted, /s/ Thomas L. Halkowski Thomas L. Halkowski TLH:sb cc Clerk, U.S. District Court (via ECF) Maryellen Noreika, Esq. (via ECF) Jonathan M. Sobel (via ECF)

80025235

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Kyphon has contacted DOT by voicemail this afternoon and advised them of this issue, but not yet had the opportunity to substantively address this issue.