Free Motion for Judgment - District Court of Arizona - Arizona

1 Lawrence G. Scarborough (No. 6965)
George C. Chen (No. 19704)

2 BRYAN CAVE, LLP

Two North Central Avenue, Suite 2200 Telephone: (602) 364-7000 Michael D. Rounds (admitted pro hac vice) 5371 Kietzke Lane

3 Phoenix, AZ 85004-4406 4

5 WATSON ROUNDS 6 Reno, NV 89511 7
Telephone: (775) 324-4100 Henry C. Bunsow (admitted pro hac vice) HOWREY, SIMON, ARNOLD & WHITE San Francisco, CA 94105

8 Michelle A. Madriaga (admitted pro hac vice) 9 525 Market Street, Suite 3600 10 Telephone: (415) 848-4900 11 Attorneys for Reno A & E 12 13 14 15 EBERLE DESIGN, INC., 16 17
-vsPlaintiff, ) CIV 02 2575 PHX DGC (LEAD) ) CIV 03-883 PHX DGC ) (Consolidated) ) ) RENO A & E'S MOTION FOR JUDGMENT ) AS A MATTER OF LAW PURSUANT ) TO RULE 50 ON VALIDITY AND ) ENFORCEABILITY ) ) ) ) ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

18 RENO A & E, 19 20 21 22 23
-vsEBERLE DESIGN, INC., and Defendant. ___________________________ RENO A & E, Counter-claimant

24 ELECTRONIC DEVICES, INC., 25 Counter-defendants 26 27 28

1
HOWREY SIMON ARNOLD & WHITE

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1 I. 2

INTRODUCTION Eberle's case on unenforceability and invalidity has closed. As to the specific defenses

3 described below, Eberle has not introduced evidence that could support a jury verdict in its favor. 4 Reno A & E moves pursuant to Rule 50(a) of the Federal Rules of Civil Procedure for judgment as a 5
matter of law on Eberle's claims of unenforceability and invalidity with respect to U.S. Patent No.

6 7 8 9 10 11 12 13 14 15 16 17
· · · 6,087,964 (the " `964 patent"). Specifically, Reno A & E moves for a judgment as a matter of law that: · the `964 patent is not rendered unenforceable by Reno A & E's alleged intent to deceive the Patent Office during prosecution of the '964 patent by failing to disclose the Model G-90 LCD Barrier Gate Operator ("G-90"), the Traficomp, U.S. Patent No. 3,942,108 (the " `108 Patent"), or the alleged on-sale bar activities. the `964 patent is not rendered obvious by any combination of the G-90, U.S. Patent No. 5,226,954 (the " `954 Patent"), the ILT Tester or the prior art detectors disclosed in the background section of the `964 patent; the `964 patent is not anticipated by the G-90 or the Traficomp; the `964 patent was not on-sale pursuant to 102(b) prior to critical date; and

18 Reno A & E explicitly reserves the right to bring any other motion pursuant to Rule 50 as it may deem 19 appropriate. 20 II. 21 22 23
THERE IS NO LEGALLY SUFFICIENT BASIS FOR A FINDING OF UNENFORCEABILITY OR INVALIDITY WITH REGARD TO THE POSSIBLE DEFENSES AND ALLEGED PRIOR ART DESCRIBED BELOW Judgment as a matter of law must be granted where "a party has been fully heard on an issue

24 and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that 25 issue." Fed. R. Civ. Pro. 50(a); see also Acosta v. City and County of San Francisco, 83 F. 3d 1143, 26 1145 (9th Cir. 1996) (judgment as a matter of law proper where "the evidence, construed in the light 27 most favorable to the non-moving party, allows only one reasonable conclusion"). 28
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1

A presumption of validity follows from the issuance of a patent. 35 U.S.C. § 282. Thus, in its

2 case-in-chief, Eberle was obligated to bring forth compelling evidence of the unenforceability and 3 invalidity of the `964 patent. See, e.g., Baxter Int'l Inc. v. COBE Labs., Inc., 88 F.3d 1054, 1058 (Fed. 4 Cir. 1996) (holding that the burden is on the party challenging the patent to establish clear and 5 convincing evidence). Because the standard of proof is "clear and convincing" evidence, in resolving 6 this motion, the court should consider whether a reasonable fact finder could conclude that Eberle has 7 proved its case with convincing clarity. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 8 202, 106 S. Ct. 2505 (1986). If Eberle is unable to identify substantial evidence such that a reasonable 9 jury might find that the elements of an issue have been shown with "convincing clarity," then Reno A 10 & E is entitled to judgment as a matter of law. See e.g., Koito Mfg. Co. v. Turn-Key-Tech, LLC, 381 11 F.3d 1142 (Fed. Cir. 2004) (vacating denial of JMOL for anticipation and obviousness based on the 12 lack of substantial evidence). 13
After Eberle's case-in-chief, the record is insufficient to establish unenforceability or invalidity

14 of the `964 patent based on the alleged prior art and other defenses described below. With regard to 15 many of the defenses discussed below, Eberle presented little to no evidence. Judgment as a matter of 16 law as to defenses on which Eberle presented insufficient evidence must be granted. 17
Foremost, Eberle has failed to prove inequitable conduct as a matter of law because the

18 inventors of the `964 patent did not intend to deceive the Patent Office by failing to disclose material 19 prior art. Eberle has presented no evidence of an intent to deceive and there is insufficient evidence of 20 materiality. Judgment as a matter of law that there was no inequitable conduct must be granted. 21
Next, the `964 patent is not rendered obvious by any combination of the G-90, ILT Tester, the

22 `108 patent or the art described in the background of the '964 patent because the references do not, as a 23 matter of law, satisfy the legal requirements for obviousness. Eberle's expert, Mr. Foderberg, admitted 24 that he used an incorrect standard for obviousness and that he failed to use the court's claim 25 construction in his obviousness analysis. Mr. Foderberg also admitted the cited references do not 26 contain any suggestion to combine to create the claims. Further, the cited references are not material 27 and do not contain each element of the claims. In contrast, substantial indicia of non-obviousness 28
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1 exist, including evidence of commercial success, long-felt need and copying. Moreover, the G-90 and 2 Traficomp do not anticipate because the references do not, as a matter of law, disclose each of the 3 elements of the asserted claims in the four corners of the reference. Accordingly, judgment as a matter 4 of law of non-obviousness and no anticipation must be granted. 5
Finally, Eberle has also failed to prove an on-sale bar because the alleged sale of the Model C

6 to Electromega was based on a purchase order for products that Reno A & E did not make or sell. 7 Significantly, Reno A & E quoted no price, no quantity and no delivery date, and Electromega 8 subsequently cancelled the purchase order. This activity does not constitute a definite commercial 9 offer for sale as a matter of law. For the reasons set forth below, judgment as a matter of law should be 10 granted against Eberle as to this defense as well. 11 III. 12
THE `964 PATENT IS NOT UNENFORCEABLE DUE TO INEQUITABLE CONDUCT To establish inequitable conduct, Eberle must prove by clear and convincing evidence that the

13 inventors of the '964 patent intended to mislead the Patent Office by failing to disclose material prior 14 art. Speedplay, Inc. v. Bebop, Inc., 211 F.3d 1245, 1259 (Fed. Cir. 2000); Dayco Prods., Inc. v. Total 15 Containment, Inc., 329 F.3d 1358, 1362 (Fed. Cir. 2003). Inequitable conduct analysis is performed in 16 two steps, "first, [the jury makes] a determination of whether the withheld reference meets a threshold 17 level of materiality and intent to mislead, and second, [the judge performs] a weighing of the 18 materiality and intent in light of all the circumstances to determine whether the applicant's conduct is 19 so culpable that the patent should be held unenforceable." Dayco, 339 F.3d at 1362-63 (even though 20 materiality element was satisfied, claim of inequitable conduct required intent to deceive, not intent to 21 withhold); Bd. of Educ. v. Am. Bioscience, Inc., 333 F.3d 1330, 1343 (Fed. Cir. 2003). The element of 22 intent necessarily involves Mr. Potter's state of mind and an evaluation of all the surrounding facts and 23 circumstances. KangaROOS U.S.A., Inc. v. Caldor, Inc., 778 F.2d 1571, 1576-1577 (Fed. Cir. 1985); 24 Abbott Labs. v. Torpharm, Inc., 300 F.3d 1367, 1379-1380 (Fed. Cir. 2002). In addition to intent, if 25 the prior art relied upon by the Eberle is cumulative or less material than that considered by the 26 examiner, there can be no inequitable conduct. Regents of the Univ. of Cal. v. Eli Lilly and Co., 119 27 F.3d 1559, 1574-1575 (Fed. Cir. 1997); Molins PLC v. Textron, Inc., 48 F.3d 1172, 1185 (Fed. Cir. 28
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1 1995). The prior art considered by the examiner can be either disclosed by the applicant or uncovered 2 by the examiner. Molins, 48 F.3d at 1185. 3
After threshold levels of materiality and intent have been established, "the court must then

4 determine whether the applicant's conduct is so culpable that the patent should be held unenforceable." 5 Bd. of Educ. v. Am. Bioscience, Inc., 333 F.3d 1330, 1343 (Fed. Cir. 2003). This is an equitable issue 6 for the Court to decide and it may do so notwithstanding the jury's advisory findings of materiality and 7 intent. Duro-Last, Inc. v. Custom Seal, Inc., 321 F.3d 1098, 1109 (Fed. Cir. 2003) (affirming district 8 court's finding of no inequitable conduct although advisory jury verdicts found materiality and intent). 9 Eberle has failed to show by clear and convincing evidence that 1) any intent to deceive

10 existed, 2) any duty to disclose on-sale activity existed, or 3) any material reference was 11 withheld. As to the issue of intent to mislead, Mr. Potter and the other inventors signed the 12 inventor's oath and disclosed what they believed to be the pertinent prior art in the background 13 section of the patent, namely stand-alone vehicle detectors that were primarily used in traffic 14 control applications. Mr. Potter considered the G-90 and the other prior art raised by Eberle to 15 be well outside the field of his invention, and thus it did not occur to him to disclose them. As 16 Mr. Potter testified, for example, he was generally aware of the G-90, a barrier gate controller, 17 which he considered to be a separate device from the claimed invention based upon their 18 fundamental differences. Further, as discussed in detail below, there was no sale or offer for 19 sale of the Model C until months after the critical date. Accordingly, no on sale disclosure 20 duty remotely existed nor did Mr. Potter believe he had such a duty. As to the issue of 21 materiality, Eberle has not shown by clear and convincing evidence that any of the prior art 22 that allegedly should have been disclosed was material and not cumulative to art already before 23 the Examiner. At the end of its case-in-chief, Eberle has presented can point to no evidence of 24 an intent to deceive the patent office by withholding material prior art. Based on the foregoing, 25 judgment as a matter of law should be entered finding no inequitable conduct. 26 27 28
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1 IV. 2 3

THE `964 PATENT IS NOT RENDERED OBVIOUS BY ANY COMBINATION OF THE CITED PRIOR ART REFERENCES A patent may not be obtained if the difference between the subject matter sought to be patented

4 and the prior art are such that the subject matter as a whole would have been obvious at the time the 5 invention was made to a person having ordinary skill in the art to which the said subject matter 6 pertains. 35 U.S.C. 103. Most, if not all, inventions arise from a combination of old elements. In re 7 Rouffet, 149 F.3d 1350, 1357 (Fed. Cir. 1998). Thus, every element of a claimed invention may be 8 found in the prior art. Id. However, identification in the prior art of each individual part of a claim is 9 insufficient, as a matter of law, to defeat patentability of the whole claimed invention. In re Kotzab, 10 217 F.3d 1365, 1369-70 (Fed. Cir. 2000). Rather, to establish obviousness based on a combination of 11 elements disclosed in the prior art, the elements must be identified in specific references, and there 12 must be some motivation, suggestion or teaching to the desirability of making the specific 13 combination. Id. at 1370. It is important that the decision maker avoid hindsight reconstruction (i.e. 14 using the claimed invention as a template for piecing together teachings contained in separate pieces of 15 prior art). Id. at 1369-72. When seeking to invalidate a patent due to obviousness, one must show why 16 one of ordinary skill in the art would select elements from specific cited references for combination in 17 the manner claimed. In re Rouffet, 149 F.3d 1350, 1357 (Fed. Cir. 1998). General and conclusory 18 testimony from an expert does not suffice as substantial evidence of obviousness. Koito Mfg. Co. v. 19 Turn-Key-Tech, LLC, 381 F.3d 1142 (Fed. Cir. 2004). 20
Eberle has failed to show by clear and convincing evidence that the '964 patent is rendered

21 obvious by any combination of the G-90, ILT Tester, the `108 patent or the art described in the 22 background of the '964 patent. Eberle failed to present any evidence that 1) identified any particular 23 combinations of references that render the patent obvious; 2) identified any specific teaching or 24 suggestion to combine; or 3) identified a person of ordinary skill in the art. Significantly, Eberle's 25 expert, Mr. Foderberg, admitted that he used an incorrect standard for obviousness and that he failed to 26 use the court's claim construction in his obviousness analysis. Mr. Foderberg testified at trial that, 27 consistent with his deposition testimony, the obviousness standard he used was as follows: "That to 28
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1 anybody looking at the situation or have knowledge of the situation, it would be obvious that prior art 2 existed prior to the issue of the patent." Mr. Foderberg also admitted during trial that he made no 3 statement as to whom someone of ordinary skill in the art was. 4
Eberle is limited to arguments and prior art disclosed within the Pretrial Order and Mr.

5 Foderberg's expert reports. Thus, the prior art is limited to the G-90, ILT Tester, U.S. Patent No. 6 5,226,954 (the " `954 Patent") and the detectors disclosed in the background section of the `964 patent. 7
As discussed above, Mr. Foderberg's improper analysis and conclusory testimony does not suffice as substantial evidence of obviousness. Koito, 381 F.3d at 1142. Further, Mr. Russell's testimony regarding the products and technology in the traffic control market going back to the 1950s may not be

8 9 10

11 used for any purpose other than Eberle's intent to willfully infringe the '964 patent. Based on the 12 foregoing, Eberle simply cannot as a matter of law provide substantial evidence to support its claim of 13 obviousness. In addition, there is also compelling objective evidence that the invention of the '964 14 15 16 17
Accordingly, judgment as a matter of law as to the non-obviousness of the `964 patent should be patent was not obvious: the substantial commercial success of the Model C as a result of its patented features, the industry reaction proving a long felt need and blatant copying by Eberle and others.

18 granted. 19 V. 20
THE `964 PATENT IS NOT ANTICIPATED BY THE G-90 To be an anticipatory reference, every element of the claimed invention must be literally

21 present in the reference, arranged as in the claim. Richardson v. Suzuki, 868 F.2d 1226, 1236 (Fed. 22 Cir. 1989). The identical invention must be shown in as complete detail as is contained in the patent 23 claim. Jamesbury Corp. v. Litton Indus. Prods., 756 F.2d 1556, 1560 (Fed. Cir. 1985). Moreover, to 24 demonstrate anticipation Eberle must present a detailed analysis that compares the claims to the 25 purportedly anticipatory references. Koito Mfg. Co. v. Turn-Key-Tech, LLC, 381 F.3d 1142 (Fed. Cir. 26 2004) (general and conclusory testimony from an expert did not suffice as substantial evidence of 27 anticipation or of obviousness). 28
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1

Eberle has not presented clear and convincing, much less any, evidence showing that the G-90

2 contains every element of `964 patent. Eberle has alleged that independent claims 1 and 31 (and 3 dependent claims 2-3 and 32) are anticipated by the G-90. However, Eberle's expert discussed the G4 90 reference in mere conclusory fashion, rather than providing a detailed analysis showing every 5 element of every claim of the '964 patent is found in the G-90. Further, Mr. Foderberg only testified as 6 to the dependent limitations. 7
The G-90 is a parking gate controller, not a vehicle detector. Therefore there is no display on

8 the vehicle detectors themselves. The G-90's display is on the Omega LCD Display Barrier Gate 9 Controller. Further, the G-90 does not select or display a function state of any vehicle detector. The 10 G-90 only displays two vehicle detector parameters, frequency and sensitivity, and all other displayed 11 information relates to gate functions, tickets, parking or vehicle counting. Based on the foregoing, 12 judgment as a matter of law that the G-90 does not anticipate the `964 patent should be granted. 13 VI. 14
THE `964 PATENT IS NOT ANTICIPATED BY THE TRAFICOMP To be an anticipatory reference, every element of the claimed invention must be literally

15 present in the reference, arranged as in the claim. Richardson v. Suzuki, 868 F.2d 1226, 1236 (Fed. 16 Cir. 1989). The identical invention must be shown in as complete detail as is contained in the patent 17 claim. Jamesbury Corp. v. Litton Indus. Prods., 756 F.2d 1556, 1560 (Fed. Cir. 1985). Moreover, to 18 demonstrate anticipation Eberle must present a detailed analysis that compares the claims to the 19 purportedly anticipatory references. Koito Mfg. Co. v. Turn-Key-Tech, LLC, 381 F.3d 1142 (Fed. Cir. 20 2004) (general and conclusory testimony from an expert did not suffice as substantial evidence of 21 anticipation or of obviousness). 22
Eberle has not presented clear and convincing evidence showing that the Traficomp contains

23 every element of the `964 patent. Eberle's expert discussed the Traficomp reference in mere 24 conclusory fashion, rather than providing a detailed analysis showing every element of every claim of 25 the '964 patent is found in the Traficomp. Further, Mr. Foderberg only testified as to the dependent 26 limitations. Notably, the Traficomp is a loop tester, not a vehicle detector. The Traficomp cannot 27 detect the presence or absence of vehicles, select function states or set values for parameters of a 28
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1 vehicle detector, or perform any typical vehicle detector functions, such as setting delay time, end of 2 green, maximum presence time or the like. Based on the foregoing, judgment as a matter of law that 3 the Traficomp does not anticipate the `964 patent should be granted. 4 VII. 5
THE `964 PATENT IS NOT INVALID BASED ON THE ON-SALE BAR A person shall be entitled to a patent unless the invention was on sale in this country more than

6 one year prior to the date of the patent application in the United States (the "critical date"). 35 U.S.C. 7 102(b). To successfully challenge a presumptively valid patent, an accused infringer must demonstrate 8 by clear and convincing evidence that prior to the critical date 1) the inventions of all claims at issue 9 were the subject of a definite commercial offer for sale or sale, and 2) the invention was ready for 10 patenting. Pfaff v. Wells Elecs. Inc., 525 U.S. 55, 67-68 (1998); Group One, Ltd. v. Hallmark Cards, 11 Inc., 254 F.3d 1041, 1045-48 (Fed. Cir. 2001). 12
Under the first prong, whether the requisite commercial sales activity did occur is determined

13 by traditional contract principles. Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040, 1046 (Fed. Cir. 14 2002); Group One, 254 F.3d at 1045-48 ("only an offer which rises to the level of a commercial offer 15 for sale, one which the other party could make into a binding contract by simple acceptance (assuming 16 consideration), constitutes an offer for sale under § 102(b)"). If there is no definite sale or offer for 17 sale prior to the critical date, that is the end of the on-sale bar inquiry. Group One, 254 F.3d at 1049; 18 Elan Corp., PLC v. Andrx Pharmaceuticals, Inc., 366 F.3d 1336, 1340-41 (Fed. Cir. 2004). The 19 second condition, "ready for patenting," can be met through a proof of reduction to practice, or proof 20 of drawings or descriptions of the invention that were sufficiently specific to enable one skilled in the 21 art to practice the invention. Pfaff, 525 U.S. at 67-68. An invention is reduced to practice when the 22 claimed inventions are constructed and proven to work for their intended purpose. Mazzari v. Rogan, 23 323 F.3d 1000, 1005 (Fed. Cir. 2003). 24
In its case-in-chief, Eberle has failed to present clear and convincing evidence that the Model C

25 was the subject of a definite commercial offer for sale prior to the April 24, 1996 critical date, much 26 less that it was ready for patenting. First, there was no offer to sell the Model C before April 24, 1996. 27 To begin with, there was no definite offer for sale or sale of all claims of the claimed invention prior to 28
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1 April 24, 1996. Claims 6-7, 15 and 37-38 were not even conceived until April 25, 1996, one day after 2 the critical date. Eberle bases its entire on-sale bar argument on a February 21, 1996 letter by Mr. 3 Potter (Tr. Exhibit 38). As Mr. Potter testified, the 222C and 292 requested in Electromega's February 4 20, 1996 purchase order were products sold by Detector Systems, the company he formerly owned. 5 Because Reno A & E did not make these models, Electromega subsequently cancelled the purchase 6 order and bought the 222C and 292 models from Detector Systems. Reno A & E did not sell or offer 7 to sell the Model C in response to Electromega's February 1996 purchase order, as Eberle contends. 8 There was no Model C to sell at the time. Instead, Reno A & E responded to Electromega's August 9 11, 1996 purchase order with its October 17, 1996 invoice, and this was the first sale or offer for sale 10 of the claimed inventions as a matter of law. Linear, 275 F.3d at 1052-1053. 11
Even assuming arguendo, that the Model C was the indirect subject of the February 1996

12 purchase order, the communications between Electromega and Reno A & E did not rise to the level of 13 a commercial offer to sell. Linear, 275 F.3d at 1052-1053. "A manifestation of willingness to enter 14 into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the 15 person making it does not intend to conclude a bargain until he has made a further manifestation of 16 assent." Id. citing Restatement (Second) of Contracts § 26 (1981). Communications with potential 17 customers must indicate the seller's intent to be bound in order to be considered a valid offer. Id. at 18 1050-51 (communications were merely preliminary negotiations; customer offers to buy were not 19 proof of a previous offer to sell). Reno A & E did not intend nor did its actions indicate an intention to 20 be bound: Reno A & E did not solicit the February purchase order from Electromega; it did not have a 21 product much less a complete design to sell at this early date nor had it had any discussions with 22 Electromega regarding the products it would sell; Reno A & E communicated it would not be able to 23 fill the February order and Reno A & E quoted no price, no quantity and no delivery date in response 24 to the February order. In sum, Electromega could not reasonably believe that Reno A & E intended to 25 enter a binding agreement for the sale of the Model C or any other product prior to the critical date. 26 Thus, Reno A & E's activity does not constitute an offer for sale as a matter of law. 27 28
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1

In light of the distinct absence of a commercial sale prior to the critical date, the Court need not

2 even reach the inquiry of ready for patenting. Regardless, Eberle has failed to provide clear and 3 convincing evidence that there was a reduction to practice of the claimed inventions at issue prior to 4 the critical date. As Mr. Potter testified, Reno A & E continued to test and develop numerous key 5 aspects of the inventions up to the time of its first sale on October 16, 1996. Not until this point were 6 the inventions proven to work for their intended purpose. Mazzari, 323 F.3d at 1005. Further, Eberle 7 has failed to show by clear and convincing evidence that the preliminary development documents 8 relied upon were insufficient for a person of ordinary skill to practice the claimed inventions. Pfaff, 9 525 U.S. at 67-68. Based on the foregoing, this Court should grant judgment as a matter of law that 10 prior to the critical date, the Model C was not offered for sale or ready for patenting, and thus the '964 11 patent was not invalid due to the on-sale bar. 12 /// 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 VIII. CONCLUSION 2
For the foregoing reasons, Reno A & E respectfully respects that the Court grant its JMOL as

3 follows: 4 5 6 7 8 9 Dated: September 1, 2005 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1. Judgment in favor of Reno A & E on inequitable conduct 2. Judgment in favor of Reno A & E on obviousness by the alleged combination of prior art 3. Judgment in favor of Reno A & E on anticipation by the G-90 or ILT 4. Judgment in favor of Reno A & E on the on-sale bar

Respectfully submitted,

By: s/George C. Chen Attorneys Reno A & E BRYAN CAVE, LLP (00145700) George C. Chen (019704) Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Telephone: (602) 364-7000 WATSON & ROUNDS Michael D. Rounds (admitted pro hac) 5371 Kietzke Lane Reno, NV 89511 Telephone: (775) 324-4100 Henry C. Bunsow (admitted pro hac) Michelle A. Madriaga (admitted pro hac) HOWREY, SIMON, ARNOLD & WHITE 525 Market Street, Suite 3600 San Francisco, CA 94105 Telephone: (415) 848-4900

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Charles F. Hauff Michael K. Kelly Daniel R. Pote Snell & Wilmer One Arizona Center 400 East Van Buren Phoenix, AZ 85004

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing was served on all counsel of record on September 1, 2005 via the Court's CM/ECF System, including:

Dated: September 1, 2005

s/Denise M. Aleman

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