UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIR E

Markem Corporation ,

Plaintif f

v . Civil No. 07-cv-6-SM

Zipher Ltd ., and

Videolet Technoloaies, Inc . ,

Defendants

O R D E R

Canon 3D of the Code of Conduct for United States Judges

provides (with exceptions not pertinent to this case) that when a

judge is disqualified in a proceeding because "the judge's

impartiality might reasonably be questioned," the judge may

participate in the proceeding if all the parties and lawyers,

after notice of the basis for the disqualification, agree in

writing to waive the disqualification under a procedure

independent of the judge's participation .

Unless a waiver is obtained from all parties and all

counsel, Chief Judge McAuliffe intends to disqualify himself in

this case, continue the Markman hearing, and have the case

reassigned to a different judge because of the following

circumstances :

The court (Deputy Clerk Barrett) was advised that Carl

Rowold, Esq ., is employed as corporate patent counsel by a

Case 1:07-cv-00006-PB Document 64 Filed 12/10/07 Page 1 of 4
company that owns one of the parties to this litigation, and he

is at least indirectly involved in a supervisory capacity .

Attorney Rowold is a close personal friend of Chief Judge

McAuliffe, and has been for some 37 years . Chief Judge McAuliffe

stood in as a proxy godfather of Attorney Rowold's eldest son .

Although personal contact between the judge and Attorney Rowold

over the years has not been frequent, and they have lived in

geographically distant regions of the country, still, the judge

considers the friendship among his closest, and believes the

parties must be made aware of that fact in order to be fully

informed of the pertinent circumstances . Attorney Rowold is

apparently planning to attend the Markman hearing scheduled this

week as an observer, and the judge will, in that event, entertain

Attorney Rowold socially .

Given these circumstances, the Chief Judge deems it possible

that a reasonable person, fully informed of these facts, might

reasonably question the judge's impartiality, or, these

circumstances might suggest an appearance of partiality . See,

e .g ., 28 U .S .C . § 455 ; Canon 3D, Code of Conduct for United

States Judges .

Chief Judge McAuliffe is fully satisfied of his actual

impartiality in this matter and would not recuse sua sponte .

Nevertheless, as the parties may have plausible and legitimate

differing views, the Chief Judge has directed that the partie s

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and counsel be afforded the opportunity to address the matter in

a manner that preserves complete confidentiality with respect to

any objection raised . Given the imminence of the Markman

hearing, a prompt response is required .

If you and your clients wish to waive the judge's

disqualification based upon his past and current relationship

with Attorney Rowold, letters to that effect from you and from

your clients must be electronically sent (e-mail) or faxed by

12 :00 p .m . on Tuesday, December 11, 2007 to Chief Deputy Clerk

Daniel J . Lynch (e-mail : Daniel Lynch@NHD .USCourts .aov or fax to :

603-230-7677) . Your communications must NOT be sent to the

judge, NOT filed in the case via ECF, and copies must NOT be sent

to other counsel .

If all parties and all counsel submit such letters, this

Notice and all responses will be made part of the record, as

required by Canon 3D, and the judge will continue participation

in the proceeding . If a waiver is not received from all parties

and all counsel, any responses received will be kept under seal

by the clerk and not shown to the judge, nor will the judge be

informed of the identity of any party or lawyer who declined to

waive the disqualification . If the disqualification is not

waived, the case will be reassigned to another judge . No actio n

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Case 1:07-cv-00006-PB Document 64 Filed 12/10/07 Page 3 of 4
will be taken with respect to the trial of this case by th e

assigned judge until this issue is resolved .

SO ORDERED .

/s/ James R . Starr

James R . Starr, Clerk

United States District Cour t

December 10, 200 7

cc : All Counsel of Record

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