UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIR E

Marine Polvmer Technoloaies, Inc .

V .

HemCon, Inc .

Civil No . 06-cv-100-JD

O R D E R

The parties filed claim construction briefs and responses to

the briefs . Marine Polymer moves for leave to file a reply to

address issues raised in HemCon's response . HemCon objects to

Marine Polymer's motion .

Local Rule 7 .1(e)(2) requires parties to move for leave to

file a reply in the context of a nondispositive motion . In

general, leave to file a reply is limited to providing an

opportunity to respond to new factual or legal arguments raised

for the first time in the opponent's objection or response . See,

e .g ., Hypertherm, Inc . v . Am . Torch Tip Co . , 2008 WL 461033, at

*1 (D .N .H . Oct . 16, 2008) .

In support of its motion for leave, Marine Polymer states

that it intends to respond to new arguments raised for the first

time in HemCon's response to Marine Polymer's claim construction

brief . The proposed reply addresses HemCon's judicial estoppel

theory, the issue of whether claim construction is dispositive,

and HemCon's theory that a protein limit is required . HemCon,

Case 1:06-cv-00100-JD Document 142 Filed 06/12/09 Page 1 of 3
contends that Marine Polymer's motion should be denied because

the court provided a claim construction schedule that allowed

only claim construction briefs and responses to the briefs so

that Marine Polymer is barred from seeking leave to file a reply .

HemCon represents to the court that its response did not include

any new arguments and contends that Marine Polymer is seeking

leave to brief new arguments .

The local rules provide for a motion for leave to file a

reply . More importantly, contrary to its representation to the

court, it appears that HemCon did not raise judicial estoppel,

the issue of dispositiveness, or a protein upper limi t

requirement in his claim construction brief . Those arguments,

however, were addressed in its response to Marine Polymer's

brief .

Therefore, Marine Polymer seeks leave to address arguments

raised in HemCon's response, which is an appropriate basis for

leave to file a reply .

Conclusion

For the foregoing reasons, the plaintiff's motion for leav e

to file a reply (document no . 139) is granted .

HemCon is granted leave to file a one-page statement limited

to citing, without argument, the pages and lines in its clai m

2

Case 1:06-cv-00100-JD Document 142 Filed 06/12/09 Page 2 of 3
construction brief (document no . 134) that address the issues of

judicial estoppel, dispositiveness, and a protein upper limit

requirement, on or before June 17, 2009, failing which, the court

will consider Marine Polymer's reply in its entirety .

SO ORDERED .

/s/ Joseph A . DiClerico, Jr .

Joseph A . DiClerico, Jr .

United States District Judge

June 12, 200 9

cc : Brian M . Poissant, Esq .

Danie l

Juli e

Lynda

W .

M .

Q .

Will ,

Baher ,

Nguyen,

Esq .

Esq .

esq .

Ognian V . Shentov, Esq .

Jonathan M . Shirley, Esq .

Leigh S . Willey, Esq .

Daniel R . Johnson, Esq .

Daniel D . Ryan, Esq .

Joseph A . Kromholz, Esq .

Richard B . McNamara, Esq .

3

Case 1:06-cv-00100-JD Document 142 Filed 06/12/09 Page 3 of 3