Sprint Communications Company LP v. Vonage Holdings Corp., et al

Filing 323

MEMORANDUM in Opposition by Plaintiff Sprint Communications Company LP re 312 MOTION to Clarify Summary Judgment Ruling as to 35 U.S.C. § 112 Par. 2. (Seitz, Adam)

Sprint Communications Company LP v. Vonage Holdings Corp., et al

Doc. 323

Case 2:05-cv-02433-JWL

Document 323

Filed 08/24/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS SPRINT COMMUNICATIONS COMPANY L.P., ) ) Plaintiff, ) ) v. ) ) THEGLOBE.COM, INC., ) VOICEGLO HOLDINGS, INC., ) VONAGE HOLDINGS CORP., and ) VONAGE AMERICA, INC. ) ) Defendants. ) ) )

Case No. 2:05-CV-02433-JWL-DJW

RESPONSE TO VONAGE'S MOTION FOR CLARIFICATION OF ORDER OF AUGUST 7, 2007 AS TO VONAGE'S REMAINING DEFENSES UNDER 35 U.S.C. § 112 Plaintiff Sprint Communications Company L.P. ("Sprint") respectfully submits the following response to Defendants Vonage Holding Corporation and Vonage America, Inc. (collectively, "Vonage")'s Motion for Clarification of Order of August 7, 2007 as to Vonage's Remaining Defenses Under 35 U.S.C. § 112: The Court's August 7, 2007 Summary Judgment Memorandum and Order (the "Order") requires no clarification. Furthermore, Vonage's proposed "clarification" is an

inappropriate narrowing of the Court's ruling. Vonage requests two forms of clarification. First, Vonage requests that the Court clarify that the Order does not pertain to Vonage's "written description" and "enablement" defenses under 35 U.S.C. § 112, ¶ 1. Doc. 312, at 2. This clarification is unnecessary. Sprint did not request summary judgment on § 112, ¶ 1. And, the Court's Order does not address those defenses.

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Case 2:05-cv-02433-JWL

Document 323

Filed 08/24/2007

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Second, Vonage requests that the Court's Order "be limited in scope to the portion of 35 U.S.C. § 112, ¶ 2 commonly referred to as `regards as.'" Doc. 312, at 1. This

requested "clarification" is inaccurate and inappropriate. Sprint moved for summary judgment with respect to all of Vonage's defenses under 35 U.S.C. § 112, ¶ 2. Doc. No. 199, at 15-16. Section 112, ¶ 2 includes defenses which are commonly referred to as the "regards as" requirement and the "definiteness" requirement. Id. at 16. Vonage recognized that 35 U.S.C. § 112, ¶ 2 involved these two requirements. Doc No. 218, at 13-14. Yet, Vonage only opposed Sprint's motion as to the "regards as" portion of ¶ 2. In fact, Vonage's only substantive reference to the "definiteness" requirement was a tacit concession as to the appropriateness of summary judgment. Id. at 17 (mentioning Sprint's argument regarding definiteness and saying "even if true, Sprint is ignoring . . . regards as"). Despite the fact that Vonage's Opposition did not substantively oppose Sprint's motion as to "definiteness," the Court's Order thoroughly addressed the "definiteness" requirement. Order, at 66-68. Accordingly, the Order disposed of both the "regards as" defense and Vonage's "definiteness" defense under 35 U.S.C. § 112, ¶ 2. The Court should reject Vonage's attempt to limit the Order's application to only the "regards as" defense. Respectfully Submitted, _/s/ Adam P. Seitz______________________ August 24, 2007 B. Trent Webb, KS Bar No. 15965 Eric A. Buresh, KS Bar. No. 19895 Adam P. Seitz, KS Bar No. 21059 SHOOK HARDY & BACON L.L.P. 2555 Grand Blvd. Kansas City, Missouri 64108-2613 816-474-6550 Telephone [phone] Facsimile ATTORNEYS FOR PLAINTIFF SPRINT COMMUNICATIONS COMPANY L.P.
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Case 2:05-cv-02433-JWL

Document 323

Filed 08/24/2007

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CERTIFICATE OF SERVICE I hereby certify that on this 24th day of August, 2007, a copy of RESPONSE TO VONAGE'S MOTION FOR CLARIFICATION OF ORDER OF AUGUST 7, 2007 AS TO VONAGE'S REMAINING DEFENSES UNDER 35 U.S.C. § 112 was e-filed with the Court, which sent notice to the following: Don R. Lolli Patrick J. Kaine Dysart Taylor Lay Cotter & McMonigle P.C. 4420 Madison Avenue Kansas City, Missouri 64111 Patrick D. McPherson Patrick C. Muldoon Barry Golob Duane Morris LLP 1667 K. Street N.W. Washington, DC 20006-1608 Attorneys for Defendants Vonage Holdings Corp. and Vonage America, Inc. /s/ Adam P. Seitz_________________ Attorneys for Sprint Communications Company L.P.

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