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`DLA Piper LLP (US)
`500 Eighth Street, NW
`Washington, DC 20004
`www.dlapiper.com
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`Joseph P. Lavelle
`joe.lavelle@dlapiper.com
`T 202.799.4780
`F 202.799.5021
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`Nov. 18, 2016
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`VIA CM/ECF
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`Hon. David E. Peebles
`United States Magistrate Judge
`U.S. District Court for the
`Northern District of New York
`100 South Clinton Street
`Syracuse, NY 13261
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`Re:
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`PPC Broadband, Inc. v. Corning Optical Communications RF LLC,
`No. 5:16-cv-162-GLS-DEP_________________________________
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`Dear Judge Peebles:
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`We represent defendant, Corning Optical Communications RF LLC (“Corning”) in the
`above identified matter. We write to request leave to file a motion to amend Corning’s Local
`Patent Rule 4.3 disclosures and in response to the letter to you from John Cook, on behalf of
`plaintiff, dated Nov. 17, 2016.
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`As the Court is aware from handling multiple Markman proceedings in the various
`related cases, the technology in these cases is not especially complicated. As a result, Corning
`generally has not filed expert reports in support of its proposed claim construction positions.
`That was Corning’s intention when it filed its Rule 4.3 disclosures in this case.
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`However, in the course of actually writing the brief, we came to conclude that the
`construction of the term “engagement fingers” in US Patent No. 8,075,338 would benefit from
`expert testimony as to how one skilled in the art would understand the patent, file history, and a
`related patent as they relates to that claim term. Hence, we included a copy of a declaration from
`an experienced electrical engineer, Les Baxter, when we filed Corning’s opening Markman
`Brief. We note that PPC likewise included a declaration from a witness, Mr. Montena, who was
`not disclosed in the PPC Rule 4.3 disclosures.
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`Case 5:16-cv-00162-GLS-DEP Document 51 Filed 11/18/16 Page 2 of 2
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`Hon. Davvid E. Peeblees
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`Novembeer 18, 2016
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`Page Tw
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`Several weekks after the oopening claimm constructiion briefs wwere filed, wwe were conttacted
`Rule
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`by PPC wwho objecteed to the decclaration of MMr. Baxter bbecause it wwas not discllosed in the
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`4.3 discloosures. We
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`told PPC we would seek leave to ammend those
`disclosures
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`and asked iff they
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`wanted to join the mmotion, as thheir Montenaa declarationn also appeaared to violaate the rule.
` PPC
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`indicatedd that they wwould opposee such a motiion.
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`As a result, wwe seek leaave to file aa motion to
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`amend Corrning’s Rulee 4.3 disclossures.
`Without
`arguing the
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`entire motioon, Corning
`believes it
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`has good grround to ammend. First oof all,
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`the declaaration materially strenggthens Corniing’s construuction of thee “engagemeent fingers”
`term
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`by explaiining how one skilled inn the art wouuld understaand the intrinnsic evidencce pertinent tto the
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`constructtion of that tterm.
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`econd, Cornning can estaablish that it
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`had no intenntion to “hidde” or delay
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`disclosure oof the
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`d its Rule 4Corning filedAt the time CBaxter teestimony. A
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`.3 disclosurees, it had noo intention t
`o use
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`expert testimony. Thhe decision tto use the exxpert testimonny was madde late in the
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`drafting proocess.
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`Third, we subbmit there iss no prejudicce to PPC froom this amenndment. Thhe subject matters
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`on whichh Mr. Baxterr opines are parts of thee intrinsic reecord and arre well knowwn to PPC.
` PPC
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`has had tthe declaratioon for severaal weeks, annd will have
`ample time
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`to respond tto it. If PPC
` feels
`it needs
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`additional tiime to respoond, we have no objectiion to grantiing them furrther time, aand if
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`PPC wishhes to file aa responsive
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`expert repoort, we havee no objectioon to that. IIf the Court
`feels
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`any otherr relief is apppropriate, suuch additionnal briefing, tthere is ampple time to aaccommodatee that
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`request, aas the Markmman hearing was movedd to January 22017 to accoommodate PPPC.
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`matter withh the Court
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`at the hearinng scheduleed for
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`We look forwward to disccussing this
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`Monday,, Nov. 21, 20016.
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`Resppectfully subbmitted,
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`Joseeph P. Lavellle
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`Couunsel for Corrning Opticaal
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`Commmunicationns RF LLC
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