ESN LLC v. Cisco Systems, Inc. et al

Filing 82

Unopposed MOTION for Leave to File to File Sur-Reply on Claim Construction by Cisco Systems, Inc., Cisco-Linksys LLC. (Attachments: # 1 Text of Proposed Order)(Smith, Kevin)

ESN LLC v. Cisco Systems, Inc. et al

Doc. 82

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION ESN, LLC, Plaintiff, v. CISCO SYSTEMS, INC., and CISCO-LINKSYS, LLC, Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 5:08-cv-20-DF JURY TRIAL DEMANDED

DEFENDANTS' UNOPPOSED MOTION FOR LEAVE TO FILE SURREPLY TO PLAINTIFF'S REPLY BRIEF ON CLAIM CONSTRUCTION
Defendants Cisco Systems, Inc. and Cisco-Linksys, LLC (collectively "Cisco") hereby request an order granting Cisco leave to file a sur-reply to the reply brief on claim construction filed by Plaintiff ESN, LLC ("ESN"). The parties have met and conferred regarding this motion, and ESN does not oppose Cisco's request for leave to file a sur-reply. Pursuant to this Court's Scheduling Order of May 22, 2008, ESN served its opening claim construction brief on March 11, 2009. Cisco filed its responsive brief on April 22, 2009. ESN filed its reply brief on May 1, 2009. ESN requested leave to file excess pages in its reply brief, Cisco did not oppose that request, and the Court granted leave for ESN to exceed the page limit on May 4, 2009. The Court's Scheduling Order requires Cisco to obtain leave to file a sur-reply brief regarding claim construction. A sur-reply is necessary for Cisco to respond to the arguments raised in ESN's reply brief, some of which had not been raised in the earlier rounds of briefing. Specifically, Cisco will address ESN's arguments regarding the following issues: (1) whether

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ESN was on notice of the subject matter set forth in the declaration of Cisco's expert in support of Cisco's claim constructions; and (2) whether IETF RFC 2543 is a standard that can be incorporated into the construction of certain disputed claim terms. Cisco therefore respectfully requests an order granting leave to file a sur-reply on claim construction. The sur-reply is submitted concurrently with this motion as required by Local Rule CV-7(k). DATED: May 8, 2009 Respectfully submitted,

By /s/ Kevin A. Smith

POTTER MINTON A Professional Corporation MICHAEL JONES Tex. Bar No. 10929400 [e-mail] 110 N. College, Suite 500 (75702) P.O. Box 359 Tyler, Texas 75710 Telephone: [phone] Facsimile: [phone] QUINN EMANUEL URQUHART OLIVER & HEDGES, LLP CHARLES K. VERHOEVEN LEAD COUNSEL Cal. Bar No. 170151 [e-mail] KEVIN A. SMITH Cal. Bar No. 250814 [e-mail] MATTHEW D. CANNON Cal. Bar No. 252666 [e-mail]

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50 California St., 22nd Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] VICTORIA F. MAROULIS Cal. Bar No. 202603 [e-mail] SAYURI K. SHARPER Cal. Bar No. 232331 [e-mail] 555 Twin Dolphin Dr., Suite 560 Redwood Shores, California 94065 Telephone: [phone] Facsimile: [phone] Attorneys for Defendants Cisco Systems, Inc. and Cisco-Linksys, LLC

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CERTIFICATE OF SERVICE I hereby certify that on the date this proof of service is signed below, I served the foregoing: DEFENDANTS' UNOPPOSED MOTION FOR LEAVE TO FILE SUR-REPLY TO PLAINTIFF'S REPLY BRIEF ON CLAIM CONSTRUCTION by email and via the Court's Electronic Filing System to George P. McAndrews [e-mail] Thomas J. Wimbiscus [e-mail] Peter J. McAndrews [e-mail] Gerald C. Willis [e-mail] Paul W. McAndrews [e-mail] Matthew N. Allison [e-mail] Holly Mack [e-mail] McAndrews, Held & Malloy 500 West Madison, Suite 3400 Chicago, IL 60661 Telephone [phone] Fax [phone] Eric M. Albritton [e-mail] Albritton Law Firm P.O. Box 2649 Longview, Texas 75606 Telephone [phone] Fax [phone]

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T. John Ward [e-mail] Ward & Smith Law Firm 111 West Tyler Street Longview, Texas 75601 Telephone [phone] Fax [phone] Date: May 8, 2009 /s/ Kevin A. Smith

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