Case 2:07-cv-00271-RSP Document 348 Filed 01/20/12 Page 1 of 4 PageID #: 19509
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Civil Action No. 2:07-cv-271-RSP
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`AMERANTH, INC.,
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`Plaintiff,
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`v.
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`MENUSOFT SYSTEMS CORPORATION
`and CASH REGISTER SALES & SERVICE
`OF HOUSTON, INC. (dba CRS TEXAS)
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`Defendants.
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`JOINT STIPULATED MOTION FOR VACATUR
`OF INVALIDITY VERDICTS AND JUDGMENT
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`Starbucks, Ex. 1088
`Starbucks v. Ameranth, CBM2015-00091
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`Case 2:07-cv-00271-RSP Document 348 Filed 01/20/12 Page 2 of 4 PageID #: 19510
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`Plaintiff Ameranth, Inc. (“Ameranth”) and Defendants Menusoft Systems Corp.
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`(“Menusoft”) and Cash Register Sales & Service of Houston, Inc. (“CRS”), pursuant to Fed. R.
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`Civ. P. 60(b), jointly submit this Stipulated Motion for Vacatur of Invalidity Verdicts and Judgment.
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`Plaintiff Ameranth and Defendant Menusoft reached an agreement of settlement on October 13,
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`2011 (“Settlement Agreement”) during a mandatory mediation session before Chief Federal Circuit
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`Mediator James Amend. Under the terms of the Settlement Agreement, the parties agreed to move this
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`Court for an Order granting relief under Rule 60(b), and thereby vacating the verdicts and judgment of
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`invalidity entered by this Court on September 21, 2010 (Dkt. Nos. 263, 265) and which were included
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`within the scope of the appeal to the Federal Circuit of this case. To accomplish this objective of the
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`parties’ settlement, on October 28, 2011, Ameranth, joined by Defendants Menusoft and CRS, moved
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`this Court for an indicative ruling pursuant to Federal Rule of Civil Procedure 62.1 and Fed. R. App. P.
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`12.1.
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`On October 31, 2011, Chief District Court Judge David Folsom, upon consideration of the
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`parties' motion for indicative ruling, indicated that if the Federal Circuit remanded the case on appeal to
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`the district court to consider the parties’ joint motion for vacatur of the invalidity verdicts and judgment
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`as a condition of their settlement, the Court would grant the motion for vacatur. (See Dkt. No. 332
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`(Judge Folsom’s Order on Motion for Indicative Ruling)).
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`The Federal Circuit has now remanded the case to this Court for entry of vacatur. (Dkt. No.
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`347). Thus, the parties jointly request that an order of vacatur of the invalidity verdicts and judgment be
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`entered by this Court. No reason exists for the Court to deviate from its expressed intent to enter an
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`order of vacatur as stated in its indicative ruling. 1 A proposed Order consistent with the parties’ joint
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`1 Two non-parties to this case have filed motions requesting entry of amicus briefs opposing vacatur.
`(Dkt. Nos. 333, 334). However, as detailed in Ameranth’s oppositions to those motions (Dkt. Nos. 335,
`336, 342, 343), neither party has provided a substantive basis for entry of their briefs or why this Court
`should deviate from its expressed intent to vacate the invalidity verdicts and judgment. The attempts by
`these non-parties to interfere in the present case should be rejected by the Court for a number of reasons
`as detailed in Ameranth’s oppositions including, inter alia, that the patent claims for which vacatur is
`1
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`Starbucks, Ex. 1088
`Starbucks v. Ameranth, CBM2015-00091
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`

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`Case 2:07-cv-00271-RSP Document 348 Filed 01/20/12 Page 3 of 4 PageID #: 19511
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`request is submitted herewith. When an Order of Vacatur has been entered, the parties will file
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`appropriate papers dismissing the case against all Defendants as settled pursuant to the terms of the
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`Settlement Agreement.
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`Respectfully submitted,
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`/s/ Michael C. Smith
`By:
`Michael C. Smith
`State Bar Number 18650410
`Email: michaelsmith@siebman.com
`Siebman, Burg, Phillips & Smith, L.L.P.
`113 East Austin Street
`Marshall, TX 75671
`(903) 938-8900 – Telephone
`(972) 767-4620 – Facsímile
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`John W. Osborne
`josborne@osborneipl.com.com
`Osborne Law LLC
`33 Habitat Lane
`Cortlandt Manor, NY 10567
`(914) 714-5936 - Telephone
`(914) 734-7333 – Facsimile
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`Peter N. Fill
`pfill@lockelord.com
`James W. Gould
`jgould@lockelord.com
`Steven M. Purdy
`spurdy@lockelord.com
`Peter H. Noh
`pnoh@lockelord.com
`Locke Lord LLP
`3 World Financial Center
`New York, NY 10281-2101
`(212) 415-8600 – Telephone
`(212) 303-2754 – Telecopier
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`Attorneys for Plaintiff Ameranth, Inc.
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`This 20th day of January, 2012.
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`/s/ Otis W. Carroll, Jr.
`By:
`Otis W. Carroll, Jr.
`State Bar Number 03895700
`Email: fedserv@icklaw.com
`Ireland, Carroll & Kelley, PC
`6101 South Broadway, Suite 500
`Tyler, Texas 75703
`Telephone: (903) 561-1600
`Fax: (903) 581-1071
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`George R. McGuire
`Email: gmcguire@bsk.com
`Bond Schoeneck & King, PLLC
`One Lincoln Center
`Syracuse, NY 13202-1355
`315/218-8515
`Fax: 315/218-8100
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`Attorneys for Defendants Menusoft
`Systems Corp. and Cash Register
`Sales & Service of Houston, Inc.
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`sought are not being asserted against these non-parties. The non-party motions are overt red herrings
`intended only to gain tactical advantages in other unrelated litigations.
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`Starbucks, Ex. 1088
`Starbucks v. Ameranth, CBM2015-00091
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`

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`Case 2:07-cv-00271-RSP Document 348 Filed 01/20/12 Page 4 of 4 PageID #: 19512
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that all counsel of record who are deemed to have to consented
`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) this 20th day of January, 2012. Any other counsel
`of record will be served by facsimile transmission and/or first class mail.
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` /s/ Michael C. Smith
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`Michael C. Smith
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`Starbucks, Ex. 1088
`Starbucks v. Ameranth, CBM2015-00091