Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:08-cv-00561-UNA

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANSELL HEALTHCARE PRODUCTS LLC, and ANSELL PROTECTIVE PRODUCTS INC., Counterclaimants, C.A. 1:08-CV-585-RMC v. TILLOTSON CORPORATION, Counterclaim Defendant.

REPLY MEMORANDUM IN SUPPORT OF COUNTERCLAIMANTS' MOTION FOR RECONSIDERATION OF THE COURT'S JULY 30, 2008 ORDER TRANSFERRING THE CASE TO THE DISTRICT OF DELAWARE

Counterclaimants Ansell Healthcare Products LLC and Ansell Protective Products Inc. (collectively "Ansell") respectfully submit this reply memorandum to respond to the arguments in Tillotson's August 18, 2008 opposition memorandum.

I.

ANSELL'S RESPONSE TO TILLOTSON'S PURPORTED "FACTS"

A.

Ansell Did Indeed Choose To Challenge Tillotson's Baseless Claim Of Infringement In Delaware Because That Court "Has A National Reputation For The Expeditious And Insightful Handling Of Patent Cases"

Ansell initiated litigation against Tillotson in Delaware, seeking "a judicial determination and declaration that Ansell has not infringed, induced others to infringe, or

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contributed to the infringement of any valid claim of the '616 patent." Ansell chose that forum not only because it is incorporated there, but also because of the District of Delaware's "national reputation for the expeditious and insightful handling of patent cases." At the time that suit was filed in August of 2006, however, the District of Delaware had a full complement of judges1/ and trials were generally scheduled to take place within 18 months of filing. There was no crisis with its docket, as has now become the case two years after Ansell filed suit in Delaware.

B.

Ansell Did Not Seek To Delay The Georgia Litigation From Proceeding Against It

Tillotson states that "[a]fter filing its claims in Delaware, Ansell sought to delay the Georgia litigation from proceeding against it." This is simply not true and is not supported by the document relied upon. What Ansell did seek to do was to enjoin altogether the pursuit of baseless claims of infringement against Ansell entities who had nothing to do with the activities which were alleged to infringe the '616 patent. In the face of that motion for injunctive relief, Tillotson backed down and withdrew all of those claims in Georgia. See Exhibit B hereto.

C.

Ansell's Positions Vis-à-Vis Stays In Delaware Are Totally Irrelevant To Whether This Case Should Be Transferred To Delaware

Ansell's positions vis-à-vis stays of the litigation in Delaware are totally irrelevant to whether this case should be transferred to Delaware. The pertinent fact is that the

1/

Judge Jordan was not appointed to the Third Circuit until December 2006. See Exhibit A hereto.

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Delaware litigations are stayed and those stays will remain in effect until all appeals to the Federal Circuit finally resolve any determinations in the ITC action.2/ Central issues in the Delaware litigation are whether or not Ansell's accused gloves infringe the '616 patent, and if so, what are the damages to which Tillotson would be entitled. Those issues do not even arise in this case. Moreover, if in this case the '616 patent is found to be either invalid or unenforceable, there will be no need to litigate any issues in the Delaware cases. To the extent the Court is interested as to the bases for either Ansell's opposition to Tillotson's motion for a stay, or Ansell's own subsequent motion for a stay pursuant to 28 U.S.C. § 1659, they are quite straight forward and a matter of record. Ansell opposed Tillotson's original motion for a stay because any adjudication of the ITC as to the validity of the '616 patent in the ITC would have no res judicata effect in the District Court, whereas a finding of invalidity by the District Court would be binding on the ITC. See Exhibit C hereto at pp. 5-8. It was Ansell's intent to immediately file a motion in the District Court for summary judgment as to the invalidity of the '616 patent based on two grounds that involved no issues of disputed fact. Id. It was Ansell's hope that this would allow it to avoid duplicative proceedings in both the District Court and the ITC. Id. The Delaware Court denied Tillotson's motion for a stay, but also denied Ansell the right to file a summary judgment until June 20, 2008, which would be after the ITC case had already been tried. See Exhibit D hereto. Thus, the only hope to avoid duplicative proceedings was to seek a stay pursuant to 28 U.S.C. § 1659, which Ansell Healthcare and Ansell Protective Products promptly did after they were later added as respondents in the ITC.
2/

Those cases will thus likely be stayed until the '616 patent has expired in May of 2010.

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D.

Any Motion That Tillotson May Pursue In The Delaware Litigation Is Completely Irrelevant To Any Motion To Transfer This Action

Tillotson raises the issue that in the Delaware litigation, after the stay is lifted the Court may address the issue of whether there was any violation of the Protective Order entered in the Delaware case because documents produced in the Delaware action were used in the ITC pursuant to a stipulation of the parties that all documents provided in the Delaware action could be used in the ITC. See Exhibit E hereto. The only apparent reason that Tillotson would have to even bring this issue to the Court's attention is in an attempt to cast Ansell and its counsel in a bad light. Although this point has absolutely no relevance to the issues before this Court, since Tillotson has raised it, the Court should be aware that the Judge in the ITC ordered that all of the documents which Tillotson claimed to have inadvertently produced in Delaware were not entitled to a claim of privilege because there had been a subject matter waiver resulting from Tillotson having voluntarily produced privileged documents on the same subject; he ordered those documents produced in the ITC; and he admitted them into evidence at trial.

E.

The Filing Of The Counterclaim Was Not Delayed

Although Tillotson does not suggest how it might be relevant to a possible transfer of this action to Delaware, Tillotson, for some reason, wants this Court to believe that Ansell was dilatory in filing the statutorily authorized counterclaim in the ITC. The counterclaim was filed on April 3, 2008. Tillotson states that Ansell "could have asserted those counterclaims in the ITC as much as six months earlier." [Tillotson Mem. at 3]. Again, Tillotson has the facts

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wrong. Ansell Healthcare and Ansell Protective Products were not served with an ITC complaint until February 2008, and an entry of appearance on their behalves and response to the Amended Complaint were filed on March 11, 2008. See Exhibits F & G hereto. The 3-week period between when an appearance was entered and when the counterclaim was filed was because Ansell hoped it could reach a settlement with Tillotson. On March 17, 2008, Ansell communicated a settlement proposal to Tillotson and agreed that while the proposal remained open, "the Ansell entities agree that they will not file a counterclaim in the ITC unless this offer has been rejected." See Exhibit H hereto. When Tillotson did not accept Ansell's offer, the counterclaim was filed.

II.

ANSELL'S REBUTTAL OF TILLOTSON'S ARGUMENTS

A.

There Are Legitimate Grounds For Reconsideration

A misapprehension of fact by the Court is unquestionably an appropriate ground for reconsideration. See, e.g., Dean v. Am. Fed'n of Gov't Employees, 549 F. Supp. 2d 115, 120 (D.D.C. 2008). The dire situation with the docket in the District of Delaware was not something of which this Court was aware at the time it issued its transfer Order. Indeed, the Court was clearly of the view that there was "no reason to suspect that the [District of Delaware]'s docket could not accommodate this case." [July 30 Order at 7]. Moreover, aside from the fact that Ansell's counsel did not understand that the Court was even entertaining the idea of transferring this case to the District of Delaware before receipt of the Court's July 30 Order, the very article that alerted counsel to the crisis with the Delaware Court's docket was not even published until July 30, 2008, the same date as the Court's Order. [See Ansell Opening Mem., Ex. B].

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Clearly, by any standard, reconsideration would be appropriate. Tillotson suggests that it is of no moment that it improperly raised and briefed the issue of the advisability of a transfer to the District of Delaware in a reply brief such that Ansell had no opportunity to brief the issue, because the Court could have ordered a transfer, sua sponte, citing Wells v. Liddy, 115 F. Supp. 2d 1 (D.D.C. 2000). [See Tillotson Mem. at 5]. In Liddy, the Court did sua sponte order that the case be retransferred to the District of Maryland. However, the Court stayed that order to permit the filing of a motion to oppose transfer. 115 F. Supp.2d at 1. Such a motion was in fact filed, and thus before retransfer was effected, the party opposing transfer was given the opportunity to file both opening papers opposing transfer and reply papers. Id. Ansell's motion for reconsideration is the functional equivalent of the motion to oppose the transfer which the Liddy Court entertained after its sua sponte retransfer order. Consideration of Ansell's argument against transfer, without any analysis of the requirements applicable to a normal motion for reconsideration, is entirely appropriate and consistent with Liddy and fundamental due process.

B.

Ansell Is Not Trying To Avoid The Stay It Sought In Delaware

Tillotson makes the incongruous argument that Ansell is now trying to avoid the stay that it sought and obtained in Delaware. [Tillotson Mem. at 5 ("Ansell Sought the Stay in Delaware that It Now Tries to Avoid")]. Ansell is by no means trying to avoid the stay that it sought and obtained in Delaware. It has a statutory right to that stay to avoid simultaneous litigation of the same patent infringement claims in both the ITC and District Court.

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Although the issue of a stay is not the subject of this briefing, Tillotson cites Wash. Metro Area Transit Auth. v. Ragonese, 617 F.2d 828, 830 (D.C. Cir. 1980), for the proposition that "where two cases between the same parties on the same cause of action are commenced in two different Federal courts, the one which is commenced first is to be allowed to proceed to its conclusion first." (Emphasis added). Ansell's claims in this Court are for unfair competition and tortious interference with prospective economic advantage, for which Ansell seeks, inter alia, injunctive relief against such continued tortious conduct. In this precise circumstance, the United States District Court for the Northern District of California has denied a motion to stay such claims pending a final decision in parallel ITC proceedings. See Epistar Corp. v. Phillips Lumileds Lighting Co., LLC., No. C 07-5194 CW, 2008 WL 913321 *4 (N.D. Cal. Apr. 2, 2008).3/

C.

The Crisis In The Docket In Delaware Would Seriously Impact The "Just, Speedy And Inexpensive Determination Of [This] Action" As Called For By Fed. R. Civ. P. 1

For almost 20 months the District of Delaware has had only three judges available to handle what is already a heavy caseload that would normally be split among four judges.4/ Thus, each of the three judges has a docket of pending cases that is 33% greater than it should

3/

In a surprising lack of candor to this Court, Tillotson and its counsel did not bring the Epistar case to this Court's attention when only four days earlier Tillotson and the same law firm had cited that opinion and the equally on-point decision in American Honda Motor Co., Inc. v. Coast Distribution System, Inc., No. C 06-04752 JSW, 2007 WL 672521 (N.D. Cal. Feb. 26, 2007) in opposing a motion to stay Tillotson's own Georgia litigation alleging infringe-ment of the '616 patent pending final resolution of the ITC proceedings. See Exhibit I hereto. This situation arose months after Ansell filed suit in Delaware. See discussion at p. 2, supra. -7-

4/

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be. In view of the extraordinary measure of assigning judges from the Eastern District of Pennsylvania, and now also from the District of New Jersey5/ to share the load of newly filed cases, the burden will not continue to grow, but the existing burden of the extra pending cases will impact the orderly disposition of cases for some substantial period of time to come. Tillotson appears to suggest that the burden will not impact Ansell because Tillotson assumes that this case, if transferred, will be stayed. Tillotson should not make that assumption based on what happened in Delaware in the cases that are pending. The only stay that Judge Farnan granted was one pursuant to 28 U.S.C. § 1659, which both sides agreed to. This case is not eligible for a stay pursuant to 28 U.S.C. § 1659, and Ansell is vigorously opposing the stay that Tillotson is seeking in this case. Indeed, case law that Tillotson itself is relying upon to oppose the stay sought by various defendants in Tillotson's chosen forum of the Northern District of Georgia (where the claims in the District Court and the ITC are identical) strongly supports the denial of a stay in this case. In American Honda, the Court was presented with the same arguments that are at the core of Tillotson's motion for stay in this case ­ narrowing of the issues, avoidance of inconsistent judgments, and giving this Court the benefit of the views of the ITC. The American Honda case, noting that, as here, the ITC proceeding would be resolved before it was called upon to address the issues, aptly held as follows:

As a result, the ITC proceeding record can be reviewed and considered by this Court and given whatever persuasive value it deems is justified. See Cypress, 90 F.3d at 1569. Pragmatically, staying the proceedings until completion of the ITC proceeding

5/

See Exhibit J hereto.

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does not help narrow the issues for this Court or promote the orderly course of justice.

2007 WL 672521 at *2. In the Epistar case, the Court held that where, as here, there was continuing tortious conduct on the part of the patentee upon which claims of unfair competition and tortious interference with prospective economic advantage were based, a stay of the unfair competition and tortious interference claims pending the final resolution of the ITC proceeding was inappropriate. 2008 WL 913321 at *4. The issue of a transfer to Delaware is wholly independent of the issue of whether this case should be stayed where a stay will prejudice Ansell.

III.

CONCLUSION

For the foregoing reasons, together with those set forth in its opening memorandum, Ansell respectfully requests the Court to reconsider its July 30, 2008 Order insofar as it ordered the transfer of this case to the District of Delaware, and upon reconsideration deny Tillotson's request for transfer to the District of Delaware. Respectfully submitted,

DATED: August 22, 2008

/s/ David M. Morris (D.C. Bar No. 432593) MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W. Washington, DC 20004 Telephone: (202) 739-5882 Facsimile: (202) 739-3001 [email protected] and

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Thomas B. Kenworthy (Admitted Pro Hac Vice) MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, Pennsylvania 19103-2921 Telephone: (215) 963-5702 Facsimile: (215) 963-5001 [email protected] Counsel for Counterclaimants Ansell Healthcare Products LLC and Ansell Protective Products Inc.

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CERTIFICATE OF SERVICE

I, DAVID M. MORRIS, do hereby certify that on this date, I caused copies of the foregoing Reply Memorandum In Support Of Counterclaimants' Motion For Reconsideration Of The Court's July 30, 2008 Order Transferring The Case To The District Of Delaware to be served upon the following individuals by Electronic and First Class Mail:

Brian Meiners, Esquire KING & SPALDING LLP 1700 Pennsylvania Avenue, N.W. Suite 200 Washington, DC 20006-2706 M. Russell Wofford, Jr., Esquire KING & SPALDING LLP 1180 Peachtree Street, N.E. Atlanta, Georgia 30309 Counsel for Counterclaim Defendant Tillotson Corporation

DATED:

August 22, 2008

/s/ DAVID M. MORRIS

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Case 1:08-cv-00561-UNA

Document 27-10

Filed 08/22/2008

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Case 1:08-cv-00561-UNA

Document 27-10

Filed 08/22/2008

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Case 1:08-cv-00561-UNA

Document 27-11

Filed 08/22/2008

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Case 1:08-cv-00561-UNA

Document 27-11

Filed 08/22/2008

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