Tafas v. Dudas et al

Filing 254

MOTION to Continue Hearing on Tafas's Motion for Reconsideration Now Set for 1/25/08or, in the Alternative, Submit Without Hearing by Jon Dudas, The United States Patent and Trademark Office. (Attachments: # 1 Proposed Order (Hearing continued to 2/8/08)# 2 Proposed Order (Submitted on papers))(Wetzler, Lauren) Modified on 1/25/2008 to reflect the title of docket entry (klau, ).

Tafas v. Dudas et al

Doc. 254

Case 1:07-cv-00846-JCC-TRJ

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division TRIANTAFYLLOS TAFAS, Plaintiff, v. JON W. DUDAS, et al., Defendants. ) ) ) ) ) ) ) ) ) )

Civil Action No. 1:07cv846(L) (JCC/TRJ)

CONSOLIDATED WITH SMITHKLINE BEECHAM CORP., d/b/a GLAXOSMITHKLINE, et al., Plaintiffs, v. JON W. DUDAS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 1:07cv1008 (JCC/TRJ)

MOTION TO CONTINUE HEARING ON MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, SUBMIT WITHOUT HEARING Defendants, by their undersigned counsel, respectfully move the Court pursuant to Local Civil Rule 7(F)(1) for an Order continuing the hearing that Plaintiff Triantafyllos Tafas noticed for January 25, 2008 on his Motion for Reconsideration of this Court's January 9, 2008 Order and Memorandum Opinion, Dkt. No. 244. The grounds for this motion are: 1) Employing the Court's ECF system, Tafas filed his Motion for Reconsideration

on Friday, January 18, 2008, after the close of regular business hours. He noticed the motion for hearing the next Friday, January 25, 2008.

Dockets.Justia.com

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2)

Counsel for Tafas did not confer with undersigned counsel prior to noticing this

hearing, as required under Local Rule 7(E). 3) Under Local Rule 7(F)(1), when a motion is opposed, "[u]nless otherwise directed

by the Court the opposing party shall file a responsive brief and such supporting documents as are appropriate, within eleven (11) days after service and the moving party may file a rebuttal brief within three (3) days after service of the opposing party's reply brief." The Court has not entered a scheduling order altering the time periods provided by Local Rule 7(F)(1).1 4) The hearing date noticed by Tafas for his Motion for Reconsideration does not

comply with the time periods set by Local Rule 7(F)(1), as it would require Defendants to submit any memoranda opposing reconsideration by today or, at the latest, tomorrow, in order for the Court to be able to consider the opposition memorandum before Friday's hearing.2 5) Under the schedule set out in Local Rule 7(F)(1), calculated in accordance with

Federal Rule of Civil Procedure 6(d), Defendants' opposition memorandum ­ to the extent one is required3 ­ is due on February 1, 2008.

Such an order would have been unnecessary in this case, which arises under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and may be decided on cross-motions for summary judgment, without a discovery period or trial. To be sure, the parties, including Defendants, have in the past noticed other motions on the Friday-to-Friday schedule contained in the Court's commonly-entered scheduling order, and the parties have acceded to that schedule. The parties' prior motions practice did not occur in the midst of the demanding summary judgment briefing schedule under which the parties are now working. Defendants are unable to accede to the Friday-to-Friday schedule at this time when the Local Rules entitle them to more time and they were required to file two substantial summary judgment opposition memoranda yesterday. Under the Federal Rules of Appellate Procedure, an answer to a petition for rehearing is not permitted unless the Court requests one. See Fed. R. App. P. 40(a)(3). Defendants are unaware of a Local Rule that addresses this situation, but note that the issues underlying the Motion for Reconsideration have already been exhaustively briefed before both Magistrate Judge Jones and this Court.
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6)

Defendants thus ask the Court to continue the hearing on Tafas's Motion for

Reconsideration to February 8, 2008, when the parties will also be before the Court on their cross-motions for summary judgment and Defendants' Motion to Strike, or in the alternative, to have the motion submitted without a hearing. Defendants suggest that a hearing is unnecessary, as it would be the fourth hearing on the same discovery and privilege log issues. 7) Pursuant to Local Rule 7(E), undersigned counsel for Defendants contacted

counsel for Tafas and asked counsel to allow Defendants the time to which they are entitled under the Local Rules to respond to this motion by continuing the hearing to February 8, 2008. Counsel for Tafas was unwilling to agree to that relief, but was willing to entertain submitting his Motion for Reconsideration without hearing if Defendants would agree to file their opposition by tomorrow ­ a condition that did not provide any material assistance to Defendants and that deprives Defendants of the time to which they are entitled under the Local Rules. Wherefore, Defendants move the Court for an extension of the hearing on Tafas' Motion for Reconsideration to February 8, 2008, or in the alternative, to allow the Motion for Reconsideration to be submitted on the papers without hearing such that Defendants may respond by February 1, 2008 if the Court requires a response. Alternative proposed orders are attached for the convenience of the Court. Respectfully submitted, CHUCK ROSENBERG UNITED STATES ATTORNEY By: /s/ Lauren A. Wetzler Ralph Andrew Price, Jr. R. Joseph Sher Assistant United States Attorneys Attorneys for All Defendants

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Justin W. Williams U.S. Attorney's Building 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: [phone] Fax: [phone] [e-mail] OF COUNSEL: James A. Toupin General Counsel Stephen Walsh Acting Deputy General Counsel and Solicitor William Covey Deputy General Counsel William G. Jenks Janet A. Gongola Nathan Kelley William LaMarca Associate Solicitors Jennifer M. McDowell Associate Counsel United States Patent and Trademark Office

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CERTIFICATE OF SERVICE I hereby certify that on January 23, 2008, I electronically filed the foregoing, with attachments, with the Clerk of the Court using the CM/ECF system, which will send a notification of such filing (NEF) to the following: Joseph Dale Wilson, III Kelley Drye & Warren LLP Washington Harbour 3050 K Street NW Suite 400 Washington, DC 20007 Email: [e-mail] Joanna Elizabeth Baden-Mayer Collier Shannon & Scott PLLC 3050 K St NW Suite 400 Washington, DC 20007-5108 E-mail: [e-mail] Counsel for Plaintiff Triantafyllos Tafas, 1:07cv846 Elizabeth Marie Locke Kirkland & Ellis LLP 655 15th St NW Suite 1200 Washington, DC 20005 Email: [e-mail] Craig Crandell Reilly Richard McGettigan Reilly & West PC 1725 Duke St Suite 600 Alexandria, VA 22314 Email: [e-mail] Daniel Sean Trainor Kirkland & Ellis LLP 655 15th St NW Suite 1200 Washington, DC 20005 Email: [e-mail] Counsel for Plaintiffs SmithKline Beecham Corp. d/b/a GlaxoSmithKline, SmithKline Beecham PLC, and Glaxo Group Limited, d/b/a GlaxoSmithKline, 1:07cv1008 Thomas J. O'Brien Morgan, Lewis & Bockius 1111 Pennsylvania Ave, NW Washington, DC 20004 Email: to'[e-mail] Counsel for Amicus American Intellectual Property Lawyers Association Dawn-Marie Bey Kilpatrick Stockton LLP 700 13th St NW Suite 800 Washington, DC 20005 Email: [e-mail] Counsel for Amicus Hexas, LLC, The Roskamp Institute, Tikvah Therapeutics, Inc. James Murphy Dowd Wilmer Cutler Pickering Hale & Dorr LLP 1455 Pennsylvania Ave NW Washington, DC 20004 Email: [e-mail] Counsel for Amicus Pharmaceutical Research and Manufacturers of America Randall Karl Miller Arnold & Porter LLP 1600 Tysons Blvd Suite 900 McLean, VA 22102 Email: [e-mail]

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Counsel for Amicus Biotechnology Industry Organization Rebecca M. Carr Pillsbury Winthrop Shaw Pittman, LLP 2300 N Street, NW Washington, DC 20037 [e-mail] Scott J. Pivnick Pillsbury Winthrop Shaw Pittman 1650 Tysons Boulevard McLean, Virginia 22102-4856 [e-mail] Counsel for Amicus Elan Pharmaceuticals, Inc. Charles Gorenstein Birch Stewart Kolasch & Birch LLP 8110 Gatehouse Rd. P.O. Box 747 Falls Church, VA 22040-0747 [e-mail] Counsel for Amicus Intellectual Property Institute of William Mitchell College of Law Craig James Franco Odin Feldman & Pittleman PC 9302 Lee Highway Suite 1100 Fairfax, VA 22031 [e-mail] Counsel for Amicus Polestar Capital Associates, LLC and Norseman Group, LLC Robert Emmett Scully, Jr. Stites & Harbison, PLLC 1199 North Fairfax St. Suite 900 Alexandria, VA 22314 [e-mail]

Counsel for Amicus Human Genome Sciences, Inc.

Matthew Christian Schruers Morrison & Foerster 2000 Pennsylvania Ave NW Suite 5500 Washington, DC 20006-1888 [e-mail] Counsel for Amicus Public Patent Foundation, et al.

Kenneth Carrington Bass, III Sterne, Kessler, Goldstein & Fox 1100 New York Ave NW Suite 600 Washington, DC 20005 [e-mail] Mark Fox Evens Thelen, Reid & Priest, LLP 701 Eighth St NW 5th Floor Washington, DC 20001-3721 [e-mail] Counsel for Amicus AmberWave Systems Corporation, et al. Jackson David Toof Robins Kaplan Miller & Ciresi LLP 1875 Eye St NW Suite 300 Washington, DC 20006-1307 [e-mail] Counsel for Interested Party Anchor Wall Systems, Inc., et al.

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Robert Christian Bertin Swidler Berlin LLP 3000 K St NW Suite 300 Washington, DC 20007-5116 [e-mail]

Maurice Francis Mullins Spotts Fain PC 411 E Franklin St Suite 600 PO Box 1555 Richmond, VA 23218-1555 [e-mail] Counsel for Interested Party Intel Corporation Blair Elizabeth Taylor Covington & Burling 1201 Pennsylvania Ave NW Washington, DC 20004-7566 [e-mail] Counsel for Amicus Intellectual Property Owner Association Maurice Francis Mullins Spotts Fain PC 411 E Franklin St Suite 600 PO Box 1555 Richmond, VA 23218-1555 [e-mail] Counsel for Amicus Micron Technology, Inc

Counsel for Amicus Bar Association of the District of Columbia Robert C. Gill Saul Ewing LLP 2600 Virginia Ave NW Suite 1000 Washington, DC 20037 [e-mail] Counsel for Amicus BioAdvance, et al. Jonathan Dyste Link Townsend and Townsend and Crew LLP 1301 K St NW 9th Floor, East Tower Washington, DC 20005 [e-mail] Counsel for Amicus CFPH, LLC John C. Maginnis, III 1350 Connecticut Ave NW Suite 301 Washington, DC 20036 [e-mail] Counsel for Amicus CropLife America Timothy A. Molino Bingham McCutchen LLP 2020 K St NW Washington, DC 20006 [e-mail] Counsel for Amicus Federation Internationale Des Conseils En Proprit Industrielle

David Wayne Long Howrey Simon Arnold & White LLP 1299 Pennsylvania Ave NW Washington, DC 20004 [e-mail] Counsel for Amicus Teles AG Informationstechnologien Kevin Michael Henry Sidley Austin Brown & Wood LLP 1501 K St NW Washington, DC 20005 [e-mail] Counsel for Amicus Washington Legal Foundation

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I have also caused copies of the foregoing, with attachments, to be sent to the following non-ECF users by first-class mail (where an address has been provided to the Court) or electronic mail (where it has not been): Jennifer Sue Martinez Stanford Law School 559 Nathan Abbott Way Stanford, CA 94305 Counsel for Amicus Intellectual Property and Administrative Law and Public Health Professors Ron D. Katznelson Encinitas, CA [e-mail] Amicus Curiae Pro Se

Robert Lelkes Geigenbergerstr. 3 81477 Munich Germany Amicus Curiae Pro Se /s/ LAUREN A. WETZLER Assistant United States Attorney Justin W. Williams U.S. Attorney's Building 2100 Jamieson Avenue Alexandria, Virginia 22314 Tel: [phone] Fax: [phone] [e-mail] Counsel for All Defendants