Anascape, Ltd v. Microsoft Corp. et al

Filing 158

Consent MOTION for Leave to File Under Seal Second Amended Answer, Defenses, and Counterclaims to Plaintiff's First Amended Complaint by Microsoft Corp.. (Attachments: # 1 Text of Proposed Order)(Carraway, J)

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Anascape, Ltd v. Microsoft Corp. et al Doc. 158 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION Hon. Ron Clark Civil Action No.: 9:06-CV-00158-RC ANASCAPE, LTD., Plaintiff, v. MICROSOFT CORP. and NINTENDO OF AMERICA INC., Defendants. DEFENDANT MICROSOFT CORPORATION'S UNOPPOSED MOTION FOR LEAVE TO FILE UNDER SEAL A SECOND AMENDED ANSWER, DEFENSES AND COUNTERCLAIMS TO PLAINTIFF'S FIRST AMENDED COMPLAINT Pursuant to Fed. R. Civ. P. 15(a), Defendant Microsoft Corporation ("Microsoft") moves the Court for leave to file its Second Amended Answer, Defenses, and Counterclaims to Plaintiff's First Amended Complaint. By the amendment, Microsoft would plead, with the specificity required by Fed. R. Civ. P. 9(b), four additional grounds of inequitable conduct for its defense and counterclaim of patent unenforceability, and additional facts supporting grounds contained in Microsoft's First Amended Answer, Defenses and Counterclaims to Plaintiff's First Amended Complaint. The facts underlying the new allegations contained in the proposed amended pleading are based on alleged inequitable conduct that has only recently occurred as part of reexaminations of the patents-in-suit and/or have only been uncovered recently by Microsoft through discovery. Microsoft also moves for leave to file its Second Amended Answer, Defenses, and Counterclaims to Plaintiff's First Amended Complaint under seal. Some of the information DEFENDANT MICROSOFT CORPORATION'S UNOPPOSED MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Page 1 Dockets.Justia.com supporting the additional grounds for inequitable conduct were obtained from documents and a deposition designated "Confidential" by Plaintiff pursuant to the Agreed Protective Order entered in this matter. Because the proposed amended pleading contain information designated "Confidential," a copy of this motion with the proposed amended pleading is being handdelivered to the Court for review. The four new allegations of inequitable conduct are pled at paragraphs 54-118 of Microsoft's Defenses and paragraphs 93-157 of Microsoft's Counterclaims. The additional facts supporting previously pled grounds are pled at paragraphs 50 and 52-53 of Microsoft's Defenses and paragraphs 89 and 91-92 of Microsoft's Counterclaims. The information obtained from a document designated as "Confidential" by Plaintiff is contained in paragraphs 62-65, 67-68, and 73 of Microsoft's Defenses and paragraphs 101-04, 106-07, and 112 of Microsoft's Counterclaims. Plaintiff Anascape, Ltd., through counsel, has indicated that (a) it does not oppose Microsoft's motion for leave to file the amended pleading attached to the courtesy copy of this motion sent to the Court, and (b) it does not oppose Microsoft filing the amended pleading under seal. Given that Plaintiff does not oppose the amendment, that discovery does not close for almost two months, and that Rule 15(a) counsels that leave to amend pleadings should be given freely when justice so requires, Microsoft respectfully requests that the Court grant the requested leave to file. Respectfully submitted, Dated: November 30, 2007 By: /s/ J. Christopher Carraway ___________ J. Christopher Carraway (admitted pro hac vice) christopher.carraway@klarquist.com Joseph T. Jakubek (admitted pro hac vice) joseph.jakubek@klarquist.com DEFENDANT MICROSOFT CORPORATION'S UNOPPOSED MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Page 2 Stephen J. Joncus (admitted pro hac vice) stephen.joncus@klarquist.com Richard D. Mc Leod (Bar No. 24026836) rick.mcleod@klarquist.com Derrick W. Toddy (admitted pro hac vice) derrick.toddy@klarquist.com KLARQUIST SPARKMAN, LLP 121 S.W. Salmon Street, Suite 1600 Portland, Oregon 97204 Telephone: 503-595-5300 J. Thad Heartfield (Bar No. 09346800) thad@jth-law.com Law Offices of J. Thad Heartfield 2195 Dowlen Road Beaumont, Texas 77706 Telephone: 409-866-3318 Facsimile: 409-866-5789 Clayton E Dark Jr. (Bar No. 05384500) clay.dark@yahoo.com Clayton E Dark Jr., Law Office 207 E Frank Ave # 100 Lufkin, TX 75901 Telephone: 936-637-1733 Stephen McGrath, Esq. (admitted pro hac vice) MICROSOFT CORPORATION One Microsoft Way, Building 8 Redmond, Washington 98052-6399 Telephone: 425-882-8080 Facsimile: 425-706-7329 Attorneys for Defendant Microsoft Corporation DEFENDANT MICROSOFT CORPORATION'S UNOPPOSED MOTION FOR LEAVE TO FILE SECOND AMENDED ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Page 3 CERTIFICATE OF SERVICE I hereby certify that all counsel of record who have consented to electronic service are being served with a copy of this document via the Court's CM/ECF system per Local Rule CV-5(a)(3) on this the 30th day of November, 2007. Any other counsel of record will be served by first class mail. /s/ J. Christopher Carraway _______ CERTIFICATE OF SERVICE

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