Microsoft Corporation v. Datatern, Inc.

MOTION to Amend/Correct 173 Declaration in Opposition to Motion, 174 Sealed Document

S.D.N.Y.December 11, 2012

ME1 14520578v.1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ) MICROSOFT CORPORATION, ) ) Plaintiff, ) ) v. ) ) DATATERN, INC., ) ) CIVIL ACTION NO. 1:11-cv-02365-KBF Defendant. ) CIVIL ACTION NO. 1:11-cv-02648-KBF ) ) SAP AG and SAP AMERICA, INC., ) ) Plaintiff, ) ) v. ) ) DATATERN, INC., ) ) Defendant. ) ) NOTICE OF MOTION OF DATATERN, INC. TO SUBSTITUTE PLEASE TAKE NOTICE that upon the supporting Memorandum of Law filed concurrently herewith, defendant DataTern, Inc. (“DataTern”), by and through its attorneys, McCarter & English, LLP, will request that this Court, at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New York, New York, on such date and time specified by the Court for an order allowing DataTern to substitute its filing under seal. Specifically, DataTern hereby requests that the Court allow DataTern to withdraw its filing of Exhibit 15 to the Declaration of Kara Lynch In Support of DataTern, Inc.’s Opposition to Microsoft Corporation’s Motion for Summary Judgment of Non-Infringement of U.S. Patent Nos. 5,937,402 AND 6,101,502 (“Lynch Declaration”), which contained the 2001 Asset Purchase Agreement between Ontos, Inc. and FireStar Software. In its place, DataTern seeks to file the Case 1:11-cv-02365-KBF Document 177 Filed 12/11/12 Page 1 of 2 ME1 14520578v.1 Asset Purchase Agreement between Amphion Innovations, PLC, FireStar Software, Inc. and Richard Morgan, dated December 20, 2007, under seal. The latter was referred to properly as Exhibit 15 to the Lynch Declaration and in DataTern’s opposition papers, while the former was filed in error under seal with the Court. Dated: December 11, 2012 McCARTER & ENGLISH, LLP /s/ Lee Carl Bromberg_____________ Lee Carl Bromberg, Esq. lbromberg@mccarter.com Erik Paul Belt, Esq. ebelt@mccarter.com William A. Zucker, Esq. wzucker@mccarter.com Daniel J. Kelly, Esq. dkelly@mccarter.com McCarter & English, LLP 265 Franklin Street Boston, MA 02110 (617) 449-6500 and 245 Park Avenue New York, New York 10167 (212) 609-6800 Attorneys for Defendant DataTern, Inc. CERTIFICATE OF SERVICE I hereby certify that a true and accurate copy of the above Notice of Motion was served on this 11 th day of December, 2012 upon counsel of record for Microsoft Corp., SAP AG and SAP America, Inc. via ECF. /s/ Lee Carl Bromberg_________________ Lee Carl Bromberg Case 1:11-cv-02365-KBF Document 177 Filed 12/11/12 Page 2 of 2