Elan Microelectronics Corporation v. Apple, Inc.

Filing 121

Declaration of Sean P. DeBruine in Support of Opposition to Apple's Motion to Strike Paragraphs 26-34 of the Claim Construction Declaration of Robert Dezmelyk re 120 , filed byElan Microelectronics Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (DeBruine, Sean) (Filed on 6/14/2010) Modified on 6/15/2010 (bw, COURT STAFF).

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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 Yitai Hu (SBN 248085) (yitai.hu@alston.com) Sean P. DeBruine (SBN 168071) (sean.debruine@alston.com) Elizabeth H. Rader (SBN 184963) (elizabeth.rader@alston.com) Jennifer Liu (SBN 268990) (celine.liu@alston.com) ALSTON & BIRD LLP Two Palo Alto Square 3000 El Camino Real, Suite 400 Palo Alto, California 94306 Telephone: 650-838-2000 Facsimile: 650-838-2001 T. Hunter Jefferson (admitted pro hac vice)(hunter.jefferson@alston.com) ALSTON & BIRD LLP One Atlantic Center 1201 West Peachtree Street Atlanta, Georgia 30309 Telephone: 404-881-7000 Facsimile: 404-881-7777 Attorneys for Plaintiff and Counterdefendant ELAN MICROELECTRONICS CORPORATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ELAN MICROELECTRONICS CORPORATION, Plaintiff and Counterdefendant, v. APPLE, INC., Defendant and Counterclaimant. AND RELATED COUNTERCLAIMS Case No. 09-cv-01531 RS DECLARATION OF SEAN P. DEBRUINE IN SUPPORT OF ELAN MICROELECTRONICS CORPORATION'S OPPOSITION TO APPLE INC.'S MOTION TO STRIKE PARAGRAPHS 26-34 OF THE CLAIM CONSTRUCTION DECLARATION OF ROBERT DEZMELYK DATE: TIME: JUDGE: CTRM: June 21, 2010 1:30 p.m. Richard Seeborg 3, 17th Floor I, Sean P. DeBruine, declare as follows: 1. I am a partner in the law firm of Alston & Bird LLP, counsel to Plaintiff Elan Microelectronics Corporation ("Elan"). I have personal knowledge of the following facts, except those facts stated on information and belief, which facts I believe to be true. If called to testify I DECLARATION OF DEBRUINE ISO ELAN'S OPPOSITION TO APPLE'S MOTION TO STRIKE 1 Case No. 09-cv-01531 RS 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 could and would testify competently to the matters stated herein. 2. Elan served timely infringement contentions on October 22, 2009 and invalidity contentions with respect to Apple's asserted patents on December 7, 2009, provided Apple with its preliminary claim constructions on January 11, 2010 and served its summary of the testimony of Robert Dezmelyk on February 22, 2010. 3. Apple took the deposition of Mr. Dezmelyk on April 9, 2010, from 9:07 am to 5:25 pm, including several short breaks and a 50-minute lunch break. 4. On May 7, 2010, both parties filed their Opening Claim Construction Briefs and Elan filed a declaration of Mr. Dezmelyk in support of Elan's Claim Constructions. The Declaration incorporates aspects of Mr. Dezmelyk's opinions to which he testified in his deposition in response to Apple's questions about the opinions set out in the February 22 Summary. Attached as Exhibit A is a chart comparing the opinions in the Summary, deposition testimony elaborating on the opinions in response to Apple's questions, and the Declaration paragraphs reflecting the deposition testimony. 5. True and correct copies of selected pages from the transcript of the April 9, 2010 deposition of Mr. Dezmelyk are attached as Exhibit B. 6. Apple has not sought to take an additional deposition of Mr. Dezmelyk on his so- called "new opinions," although it had over three weeks in which to do so. Instead, on Tuesday, June 1st, the evening before Responsive Claim Construction Briefs were due, Apple's counsel emailed me alleging that the May 7 declaration violates the Patent Local Rules, advising that Apple would move to strike it and asking Elan to agree to a shortened briefing schedule. A true and correct copy of Apple's email is attached as Exhibit C. // // // // // // DECLARATION OF DEBRUINE ISO ELAN'S OPPOSITION TO APPLE'S MOTION TO STRIKE 2 Case No. 09-cv-01531 RS 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 7. I responded for Elan, disagreeing with Apple's accusation but agreeing to a shortened briefing schedule to allow Apple's motion to be heard before or in connection with the Claim Construction hearing. A true and correct copy of my e-mail is attached as Exhibit D. I swear under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on June 14, 2010, at Palo Alto, California. /s/ Sean P. DeBruine Sean P. DeBruine DECLARATION OF DEBRUINE ISO ELAN'S OPPOSITION TO APPLE'S MOTION TO STRIKE 3 Case No. 09-cv-01531 RS

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