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Jean-Marc Zimmerman (Pro Hac Vice) 

Zimmerman & Levi LLP 

226 St. Paul Street 

Westfield, NJ 07090 

Tel: (908) 654-8000 

Fax: (908) 654-7207 

John W. Hathaway 

Law Offices John W. Hathaway, PLLC 

4600 Bank of America Tower 

701 Fifth Avenue 

Seattle, WA 98104 

Tel: (206) 624-7100 

Fax: (206) 624-9292 

Attorneys for Plaintiff Eon-Net, L.P 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

EON-NET, L.P., 

 

 Plaintiff, 

 v. 

FLAGSTAR BANCORP, INC., 

 Defendant. 

CASE NO. C05-2129RSM 

PLAINTIFF EON-NET, L.P.’S REPLY IN 

SUPPORT OF ITS MOTON PURSUANT 

TO LOCAL RULE CR 7(d)(2)(A) TO STAY 

THE IMPOSITION AND 

ENFORCEMENT/ EXECUTION OF THE 

MONETARY JUDGMENT PENDING 

APPEAL 

NOTE ON MOTION CALENDAR: 

JUNE 11, 2010 

ORAL ARGUMENT NOT REQUESTED 

 

 

Case 2:05-cv-02129-RSM Document 198 Filed 06/11/2010 Page 1 of 4
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I. PRELIMINARY STATEMENT

 Eon-Net, L.P. (“Eon-Net” or “Plaintiff”) and undersigned counsel submit this Reply to 

defendant Flagstar Bancorp, Inc.’s (“Flagstar” or “Defendant”) Opposition to Eon-Net’s Motion 

pursuant to Local Rule CR 7(d)(2)(A) to stay the imposition and enforcement/execution of the 

monetary judgment to be entered in Flagstar's favor. 

II. ARGUMENT

 Contrary to Flagstar’s contention, Eon-Net does seek to stay the imposition of sanctions 

pending the appeal. However, Eon-Net, also seeks pursuant to Fed R. Civ. P. 62(d) to stay 

Flagstar’s ability to enforce/execute the judgment to be entered, pending the appeal. 

 The test for staying the imposition of sanctions and for staying the ability to enforce/execute 

a judgment involve the same analysis. Namely, assess the movant's chances of success on the merits 

and weigh the equities as they affect the parties and the public. See E.I. Dupont de Nemours & Co. 

v. Phillips Petroleum Co , 835 F.2d 277, 278 (Fed. Cir. 1987). To prevail, a movant must 

demonstrate a strong likelihood of success on the merits or, failing that, must demonstrate that it has 

a substantial case on the merits and that the harm factors militate in its favor. See Hilton v. 

Braunskill, 481 U.S. 770, 778 (1987). 

 Contrary to Flagstar’s contention, Eon-Net and undersigned counsel are likely to prevail on 

the merits of their appeal. First, the U.S. Patent and Trademark Office (“PTO”) reviewed this 

Court’s March 4, 2009 Order on Claim Construction (“Markman Order”) and then nonetheless 

issued three patents having explicit claims in accord with Eon-Net and undersigned counsel’s claim 

construction, i.e., processing information that does not originate or is not otherwise derived from 

scanned hard copy documents. The fact that the PTO did so, demonstrates that Eon-Net and 

undersigned counsel’s claim construction is not baseless. 

Case 2:05-cv-02129-RSM Document 198 Filed 06/11/2010 Page 2 of 4
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 Likewise, the Federal Circuit explicitly indicated in Eon-Net, L.P. v. Flagstar Bancorp, Inc., 

2007-1132 that even in the absence of its ruling on a claim construction of the U.S. Patent No. 

6,683,697, it believed that undersigned counsel conducted a proper pre-suit investigation and that 

there was support for Eon-Net’s infringement position. The fact that the Federal Circuit did so, 

further demonstrates that Eon-Net and undersigned counsel’s claim construction is not baseless. 

 Eon-Net’s claim construction was proper. This Court’s dislike for Eon-Net, for its principal, 

for its business model, and for undersigned counsel, should be irrelevant to and does not change the 

fact that Plaintiff’s claim construction was reasonable. For the reasons set forth in its Motion, EonNet and undersigned counsel are likely to prevail on their appeal of the Markman, Sanctions and 

Monetary Orders. 

 Finally, undersigned counsel will be irreparably harmed if he has to try and pay the 

sanctions prior to a decision on the appeal. He does not have the funds to pay the sanctions amount 

or to pay for a bond. Further, the issuance of the Sanctions and Monetary Orders have already 

harmed undersigned counsel in that they have interfered with his ability to earn a living. He has lost 

business because of them. And they have been cited by adversaries in non-Eon-Net cases to try and 

harm him and his clients. See Declaration of Jean-Marc Zimmerman, ¶¶2, 3 submitted herewith. 

Case 2:05-cv-02129-RSM Document 198 Filed 06/11/2010 Page 3 of 4
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III. CONCLUSION

 For the foregoing reasons, this Court’s imposition of sanctions and Flagstar’s ability to 

enforce/execute on the judgment to be entered in this case should be stayed pending Plaintiff and 

undersigned counsel's appeal of the Court’s Markman, Sanctions and Monetary Orders. 

 

 By:/s/Jean-Marc Zimmerman 

 Jean-Marc Zimmerman (Pro Hac Vice) 

 Zimmerman & Levi, LLP 

 226 St. Paul Street 

 Westfield, New Jersey 07090 

 Tel: (908) 654-8000 

 Fax: (908) 654-7207 

 John W. Hathaway 

 Law Offices John W. Hathaway, PLLC 

 4600 Bank of America Tower 

 701 Fifth Avenue 

 Seattle, WA 98104 

 Tel: (206) 624-7100 

 Fax: (206) 624-9292 

 

 Attorneys for Plaintiff Eon-Net, L.P. 

Date: June 11, 2010 

 Westfield, NJ 07090 

Case 2:05-cv-02129-RSM Document 198 Filed 06/11/2010 Page 4 of 4