Opinion
2011-1577
02-29-2012
PERKINELMER, INC. AND NTD LABORATORIES, INC., Plaintiffs-Appellees, v. INTEMA LIMITED, Defendant-Appellant.
NOTE: This order is nonprecedential.
Appeal from the United States District Court for the District of Massachusetts in case no. 09-CV-10176, Judge F. Dennis Saylor, IV.
ON MOTION
Before REYNA, Circuit Judge.
ORDER
Intema, Inc. moves "for leave not to reply" to portions of the appellees brief that are directed to the issues of validity over the Davies European patent application, the Thilaganathan article, and a Snijders book, or, in the alternative for an enlarged reply brief. The appellees oppose. Intema replies. Intema also moves for an extension of time to file its reply brief.
Appellees may present "all arguments supported by the record and advanced in the trial court in support of the judgment as an appellee, even if those particular arguments were rejected or ignored by the trial court." Bailey v. Dart Container Corp, of Michigan, 292 F.3d 1360 (Fed. Cir. 2002). The appellees presented arguments to the district court with respect to the above-noted issues during summary judgment briefing. Thus, PerkinElmer may present the same arguments here, even if as Intema asserts the district court did not consider the issues in reaching its ultimate determination. However, the relevance and merits of those arguments are left to the discretion of the merits panel.
Accordingly,
IT IS ORDERED THAT:
(1) The motions for "leave not to reply" and for an enlarged reply brief are denied.
(2) The motion for an extension of time is granted. Intema's reply brief is due within 14 days of the filing of this order.
FOR THE COURT
______________________
Jan Horbaly
Clerk
cc: Bradford J. Badke, Esq.
Lawrence Rosenthal, Esq.