exhibit 28 · will include any such privileged, protected or immune information, documents or...

Exhibit 28

Case 1:05-cv-00608-MPT Document 233 Filed 02/01/2007 of 41

FROM I3 Z&F (LION) 9.11'06 18:36/ST. 18:35/NO. 4864902441 P 5

1N THE UNITED STATES DISTRICT COURTFOR TI-IE DISTRICT OF DELAWARE

CROWN PACKAGING TECHNOLOGY,fNC,. Plaintiff, and CROWN CORK. A )SEAL USA, NC..

Plaintiff and Counterclaim )Defendant,

1 Action No. 05-608 (K-AJ)V.

REXAM BEVERAGE CAN COQ^.I ANY,t

Defendant and Counterclaimant.

DEFENDANT-C:OUNTERCLAAI, ANT REXAM BEVERAGE CAN COMPANY'SSUPPLEMENTAL RESPONSES ':3 CROWN TECHNOLOGY'S AND CROWN

USA'$ AMENDED 1N 'E'L "ROGATORIES NQ$. 7 THROUGH 9

Defendant-Counterclaimant .--,xam Beverage Can Company ("Rexam"), through

its couns,:l, hereby submits its gCr?Cral objections, speCtfac objections and supplemental

responses to Crown Packaging Technology, Inc-'s and Crown Cork & Sea? USA, Inc.'s

("Plaintiffs") Amended Inte:rrogatot-ies Nos. 7 tl?rough 9.

GENIIRAI. OBJECTIONS:

Rexarn objects to Plaintiffs' interrogatories to the extent they seek information,

documents or things protected by the attorney-client privilege, are immune from

discovery pursuant to the work product doctrine, or are protected or immunized b-v any

other applicable privilege, immunity, doctrine or protection from discovery. All of the

following responses and answers are made subject to this objection and none of the

following responses or answers, none of the ir_fomiation, documents or things identified in

these Interrogatory responses, and =lane of the responses or answers to any other discovery

RLPI-30 57074-1


FROM RUF (MON) 9,11'06 18:36/ST, 18:35/NO. 4864902441 P 6

attempts by Plaintiffs (including, b _, t not limited to, cluestions posed at any oral deposition)

will include any such privileged , protected or immune information , documents or things.

Rexam objects to each lntc .rro atory, including all accompanying Definitions and

fnstructions , to the extent that they:; attempt to impose upon Rexam discovery obligations

beyond those required by the l;ed-ra ,l Rules of Civi l Procedure , the Vocal Rules of tho

U .S. District Court for the District of Delaware and/or judge specific rules and/or the

Court's scheduling order establishing a d.iscovM; schedule and pretrial requirements.

Rexam objects to Plaint i ffs' definition or the phrase "provide a detailed

description of the factual basis" tc, the extent it renders the scope of any Interrogatory

overly broad and/or unduly burderl : o e, Rexam objects to Plaintiffs ' Interrogatories to

the extent they pertain to former counsel, agents , employers or employees OT other

persons who formerly acted on behalf of Rexam. R.cx.am cannot reasonably be expected

in all instances to speak now for former counsel , agents or employees or other persons

who formerly acted on, behalf of Rexam.

Rexam objects to each Interrogatory and each Definition and/or Instruction to the

extent it is overly broad , unduly burdensome , vague, ambiguous . indefinite, lacking in

reasonable particularity , untimely , prt-mature or seeks information, documents or things

uniquely in the possession , custody or control of Plaintiffs , its divisions, affiliates,

officers, directors , employees , agents , representatives , distributors and/or customers.

To the extent that Rexam provides a responsc arguably within the scope of any

definition set forth by Plaintiffs , such response by Rexa rn shall not be construed to be an

admission by Rexam as to the validity or scope of any such definition,

Page

RU I -3057074-1


FROM AL&F (MON) 9.11'06 18:37/ST. 18:35/NO. 4864902441 P 7

Rexam objects to each Interrogatory to the extent that it seeks confidential,

proprietary, and/or sensitive business information. :1ny answers, responses, documents,

things or information provided by Rexam, are subject to the PTQtCCtivC Order entered in

this case,

Discovery is ongoing, and .Rexam, is continuing its preparation for trial. All

responses to the following Interrogatories are based on information presently luiown to

Rexam after a reasonable effort to compile information called fur by these

Interrogatories. All answers are given without prejudice to Rexam's right to supplement

and/or niodify its responses at a later time. In addition, Rexam's objections as set forth

herein are made without prejudice to Re;xam's right to assert any additional or

supplemental objections.

RESPONSES

AMENDED INTERROGATOR NO.7:

Provide a claim chart and detailed description of the factual basis for Rexam'sallegation that Crown is infringing claims of the 819 Patent . The detailed descriptionshould include , but should not be lirnitcd to , an identification of the asserted claims; anidentification of the Crown product accused of infringement ; an explanation as to whichclaims are allegedly infringed either literally or under the doctrine of equivalents for eachaccused product; an explanation of the claim construction of the limitations of each claimalleged to be infringed , and ate explanation as it) why cash such claim hinitation is met(either literally andlor under the doctrine of equivalents).

RESPONSE TO AMENDED 1ltiV'4'-tR-R0GAT0RV NO. 7:

Rexam objects to this Interrogatory to the extent that it seeks to place an undue

burden on Rexaxn with respect to Lontentions that will, due to documents and things that

still have not been produced by Crown, and other de v --lopments of this action, necessarily

'age

RLF t -3037074-1


FROM AZ&F (MON) 9,11'06 18:371ST. 18:351NO. 4864902441 P 8

change. Rexam also objects to this Interrogatory to the extent that it seeks to discover

information that is subject to the attorney/client privilege or work product immunity and

to the extent that it regtures a "claim chart".

Subject to the above stated objections and the General Objections, Rexam submits

this supplemental response to I.ntctTogatory No. 7 as follows;

Rexam asserts that Crown has infringed claim 1 of the 839 patent. The claim

recites:

A method of necking an :open end of a container side wall to form asmoothly-shaped neck proile comprising; the steps of:

(a) producing relative axial movement between a container and a firstnecking die to engage. the external surface of a portion of the open end ofthe container with said first die at a small acute angle to compress saidside wall radially inwardly along a length of said container to produce areduced cylindrical neck at said open end and form a first taper having afirst arcuate segment on the end of said side wall and a second arcuatCsegment on the end of said reduced cylindrical, neck.;

(b) removing said container from said first necking die;

(c) producing relative axial movement between a second necking die andsaid container to engage the external surface of the container and form asecond taper; and

(d) forcing said second taper do'^vnwardly until it is contiguous with saidfirst taper and reforms only an upper portion .^f Said first taper whileproducing an extension of said first taper to produce an enlargedsmoothly-shaped necked-in profile.

Rexam asserts that the claim terms set forth in claim i (and claims 2, 5 and 11 of

the '839) patent mean what they say, and that fill effect must be given to the ordinary

and accustomed meaning of eadr.1 claim limitation (or teu-n). See, e.g., Johnson

Worldwide Assoc., Inc. v. Zebco Corp., 175 F.3d 985, 9,99 (Fed. Cir. 1999). Rexam is

Page 4

R LF i 30570^, 4- I


FROM RL&F (MON) 9,11'06 18:37/ST. 18:35/NO.4864902441 P

also asserting that Crown's cans literally infringe the method claims of claims 1, 2, 5 and

11 of the `839 Patent. Rexam is also asserting that certain of Crown's cans infringe the

method clairns of claims 1, 2, and 11 of the `839 Patent under the doctrine of

equivalence. Rexam is not asserting the apparatus claims of the `839 Patent.

Rtmuri asserts that its investigation of certain Crown cans shows that Crown is

using a smooth die necking method to manufacture its can bodies. Examination of

certain of Crown's cans indicate that there are no striations associated with the tapered

neck such as those that can be seer: when forming a tapered neck using a forming roller,

(See the figure below.) Rexam i,as also discussed this matter with its engineers who

confirm that the necked-in portion; of Crown's can body must have been made using the

methods claimed in the `839 Paten:.

As Rexam, pled in its Answer To Crown's Second Amended Complaint For Patent

Infringement And Counterclaims, "Iu1pon info_-rnallon and belief, a reasonable

opportunity for discoverywill prodluce evidence that certain can bodies that Crown USA

has made in the united States are made by a method as claimed by the `839 Patent."

(Rexam's Answer and Counterclaims at 11 9.) As with many infringement claims

involving method claims, a significant amount of information relating to infringement,

the accused products and dainages is in the possession, custody and/or control of the

accused infringer. Rexam is still waiting fbr the production of documents relating to the

tooling used by Crown in its smooth die necking manufacturing process and the

documents relating and referring to any changes in the tooling.

Page i

RLrI -3057074-1


FROM RUF (MON) 9,11'06 18:37/ST. 18:35/K 4864902441 P 10

Additionally , Crown has also admitte.d that it has purchased equipment from

Belvac Production Machinery , Inn. for the manufacture of' can bodies with a smooth

necked-in portion and , contrary to Crown ' s Eleventh Affinnative Defense, there is no

implied license for using the methods claimed in the ` 8a9 Patent, even assuming Crown

did purchase such equipment from Bclva.c.

Rexam continues to investigate and will continue to take discovery on issues

relating, to this Interrogator y. IT additional nun-privileged , non-immune infon-nation.

documents or things responsive to this Interrogatory become available, Crown will be

made aware of or provided with that information or those documents or things.

FL.r!-3C'"•:: -:


FROM RUF (MON) 9.11'06 18:30T. 18:300. 4864902441 P 11

AMENDED INTERROGATORY NO. 8:

Provide; a claim chart and detailed description of the factual basis for Rexam'sallegation that Crown is infringing claims of the 385 Potent. The detailed descriptionshould include, but should not be limited to, an identification of the asserted claims; anidentification of the Crown product accused of infringement ; an explanation as to whichclaims are allegedly infringed either literally or under the doctrine of equivalents for eachaccused product; an explanation of lh claim construction of the limitations of each claimalleged to be infringed , and an cxplar<ation as to adhy each such claim limitation is met(either literally and/or under the dcet ine of equivalents).

RESPONSE TO AMENDED - IN! " ' :_ROGATORY NO. S:


burden on Rcxam with respect to wontcntions that v,-111, due to documents and things that

still have not been produced by Crown, and other developments of this action, necessarily

change. Rexam also objects to tlt;s Inter ogatory m the extent that it seeks to discover

information that is subject tL the attorney/client privilege or work product immunity and

to the extent that it requires a "claim chart". Rexam als;^ objects to this Interrogatory to

the extent that it is multiple Inteerogatories (i.e., has multiple subparts) rather than a

single Interrogatory . As such, Interrogatory No. 8 and Amended Interrogatory No. 8 wi1J

be treated as two separate sets of in errogatorie's for purpose of discovery limits.

Subject to the above Ntat,--d objections and the General Objections , Rexam

responds in part to Interrogatory No. 8 as follows:

Rexam asserts that Crow has infringed claim a ry of the `385 patent . The claim

recites:

A method of reforming the bottom of a container , said container having alongitudinal and a radial axis, a gcncraIly cylindrical side wall parallelwith said longitudinal axis, an outer annular wall; a convex U-shapedportion : a preformed bottom wall including a center domed portion; and

Page 7

RUI-305?074-1


FROM AL&F (MON) 9.11'06 18:381ST. 18:351N0. 4864902441 P 12

an annular, substantially longitudinal wall joining said domed portion andsaid convex U-shaped pornon, said method comprising:

(a) providing radially inward support for said container;

(b) providing a reforming roller; and

(c) moving said reforming roller radially into engagement with saidsubstantially longitudinal wall, said reforming roller rotating along said,longitudinal wall and about an arcuate path, in substantial radial alignmentwith said radial inward support,

(d) wherein said reforming roller affects the angle of said substantiallylongitudinal wall.

Rexam asserts that the claim terms set forth in claim 17 of the `385 Patent mean

what they say, and that full effect must be given to the ordinary and accustomed meaning

of each claim limitation (or to .See?, e,g., Johnson Worldwide Assoc., Inc. v. Zabco

Corp,, 175 F.3d 985, 989 (Fed.. Cir. 1999). Rexain is asserting that Crown's method of

manufacturing certain cans (its particular those made at Crown's Fort Bend

manufacturing facility) literally inn inges the method claimed by claim 17 of the `385

Patent. 4Zexam is also asserting that Crown's method of manufacturing those cans

infringes the method claimed by claim 17 of the `385 Patent under the doctrine of

equivalents.

Using the ordinary and customary meaning of claim terms such as "radially

inward support," "roller," "substanti. ' longitudinal wall," "reforming roller rotating

along said longitudinal wall and about an arcuate path ," and "reforming roller affects the

angle of said substantially longitudinal wall," Rexam s investigation of certain Bud Light

Cans manufactured by Crown shov3-s that Crown has in the past and apparently continues

to "reform" the bottom of its cf;mm by using "rollers" to "affect the angle" of the

I'age 8

RUF 1-305'70 :'4-1


,FROM RUF (MON) 9.11'06 18:38/ST. 18:35/NO. 4864902441 P 13

"substantially longitudinal wall" in such a way tbai is covered by claim 17 of the 395

patent,

ties,:etx} l^letztiec^ its ..':.s^saS,r To Scr.;t-nd Amended C niplainI l^or

Paten it -ynn4gcment i%ntl ?1n^^ <ltJ':^•. "i `,-^ Clll :.:1Z0."'!:':tatl^Pl and, b'elief t? iC-'ci::i)nablL•'

oppot`un.:ty )!, discover\ vyill produce evidence i,hat can holies, that Crown USA has,

made n titc United States; are rnacl=, by a method and:'or gparatus as claimed by the `385

Patent." (Rexam's Answer and Counterclaims at 11 F) As with many infringement

claims involving method claims. a significant amount of information relating, to

infringement, the accused products and damages is in the possession, custody and/or

control of the accused infringer.

Page 9

RU 1-3057074-1


TROM RUF (MON) 9,11'06 18:39/ST. 18:35/NO. 4864902441 P 14

l1exam has obtained testimony and documents that support its allegation of

infringement and it continues to investigate and will continue to take discovery on issues

relating to this Interrogatory ; including an inspection of Crown ' s Fort Bend

manufacturing facility. If additional non-privileged , non-immune information,

documents or things responsive to this Interrogatory bccomc available , Crown will be

made aware of or provided with that iniorniation or those documents or things.

AMENDED INTERROGATORY NO. 9:

Provide a claim chart and detailed description of the factual basis for Rexam'sallegation that Crown is infringing claims of the 242 patent. The detailed descriptionshould include , but should not be limited to, an identification of the asserted claims; anidentification of the Crown product accused of infringement ; an explanation as to whichclaims are allegedly infringed either literally or under the doctrine of equivalents for eachaccusal product ; an explanation of the claim construction of the limitations of each claimalleged to be infringed, and an explanation as to kvhy each such claim limitation is met(either literally and/or under the doctrine of equivalents).

RESPONSE TO AMENDED II YJ,'`_ _L10GATORY NO.9:


burden on Rexam with respect to contentions that will, dL!e to documents and things that

still rave not been produced by Crown, and other developments of this action , necessarily

change . Rexam also objects to this Interrogatory to the extent thai it seeks to discover

informati on that is subject to the attorney/client privilege or work product immunity and

to the extent that it regwres a "claim chart". Rexani also objects to this Interrogatory to

the extent that it is multiple Interrogatories (i.e., has multiple subparts ) rather than a

single Interrogatory . As such , Interrogatory No. 9 and Amended Interrogatory No. 9 will

be treated as N,o separate sets of interrogatories for the pkrpose of discovery limits.

Page 10

RLF 1-30570'71'-1


ROM RL&F (MON) 9,11'06 18:30T. 18:300. 4864902441 P 15

Subject to the above stated objections and the Goneral Objections, Rexam

responds in part to 1nte;rToggatory No. 9 as follows:

Rexam asserts that Crown has infnged claim 1 l of the ` 242 Patent . The claim

recites:

A method of reforming a bottom of a drawn and ironed beveragecontainer , said container having a longitudinal axis; the bottom having anouter annular wall , a convex U-shaped portion , a preformed wall includinga center domed portion , and an annular, substantially longitudinal walljoining said domed portion and said con vex U-shaped portion; saidmethod comprising:

(a) providing said drawn and ironed beverage container;

(b) providing a reforming roller; and

(e) moving said reforming roller radially into engagement with saidsubstantially longitudinal wall of said beverage container , said reformingroller rotating along said longitudinal wall and circumferentially about anarcuate path, wherein said reforming roller affects the angle of saidsubstantially longitudinal wall.

Rexam asserts that the claim terms set forth in claim 1 ( ad claims 12 and 17) of

the `242 Patent mean what they sad, and that full effect must be given to the ordinary and

accustomed meaning of each claim limitation (or term). See, e.g., Jvhnsvn Warldwide

Assoc., Inc, v. Lebco Corp., 175 F3d 985, 989 (Fed. Cir. 1999). Rexam is asserting that

certain of Crown ' s cans are tzianufacture ;d using; a -ixnethod that literally infringes the

method claimed by claim 11 of the `242 Patent. Rexam is also asserting that certain of

Crown's cans are manufactured using a method that infringes the method claimed by

claim 11 of the `242 Patent under the doctrine of equivalents.

Pugs 11

R.LF1-3057074.1


-FROM RUF (MON) 9,11'06 18:39/ST. 18:35/NO. 4864902441 P 16

Rexam is also asserting that Crown has literally infringed claims 12 and 17 of the

`242 Patent and/or that Crown has io-ofs,inged claims 12 and 17 of the '242 Patent under

the doctrine of equivalents.

Using the ordinary and ci stomary meaning of claim terms such as "roller,"

"substantially longitudinal wall," " t•^fnrrning roller rotating along said longitudinal wall

and c-Ircuzr►ferentially about an ar,•aate path," and "reforming roller affects the angle of

said substantially longitudinal wal!," Rexam's investigation of certain Bud Light Cans

manufactured by Crown shows that Crown has in the past and apparently continues to

"reform" the bottom of its cams by using "rollers" to "affect the angle" of the

"substantially longitudinal wall" in su6lh a way that is covered by claims 11, 12 and 17 of

the `242 Patcnt.

Pa- e

s ^.s ; ^,,:7 11) 71 z


-FROM RUF (LION) 9,11'06 18:39/ST. 18:35/NO. 4864902441 P 17

As Rexam pleaded in its Answer To Crown's Second Amended Complaint For

Patent Infringement :ltd Counterclaims, "[u]pon information and belief, a reasonable

opportunity for discovery will prodce evidence that certain can bodies that Crown UJISA

has made in the United States are made by the me-thods as claimed in the `242 Patent."

(Rexam's Answer and Counterclaims at 126.) As with many infringement claims

involving method claims, a significant amount of information relating to infringement,

the accused products and damages is in the possession, custody and/or control of the

accused infringer.

Rexam has obtained test tnony and documents that support its allegation of

infringement and it continues to in\ csiigate and will continue to take discovery on issues

relating to this Interrogatory, jacluding ail inspection of Crown's For[ Bend

manufacturing facility. Rexam recognizes its obligation to supplement these

interrogatories and reserves the right to do so. If additional non-privileged, non-immune

information, documents or things responsive; to this Interrogatory become available,

Crown will be made aware of or provided with that information or those documents or

things.

Page i3

KL1-1-311; 7074-1


.FROM RUF (MON) 9,11'06 18:39/ST. 18:35/NO. 4864902441 P 18

FOR THE GENERAL OBJE __:i:S AND SPECIFIC OBUCTIONS TOREAM'S SUPPLEMENTALNOS. 7-9, THE LEGAL CONTI'LEGAL AUTHORITY SET FOPINTERROGATORY NOS. 7-9:

`J'ERS TO AMENDED INTERROGATORYONS SET FORTH HEREIN AND THEIN THE SUPPLEMENTAL ANSWERS TO

Of Counsel:George P. McAndrewsSteven J. HamptonRichard T, McCaulle;-Gerald C. WillisPaul \V. McAndrewsMcAndrews, Held & Malloy, Ltd.500 W. Madison Street, Suite 3400Chicago, IL 60601Tel: i 12-775-8000

Fax: 312-775-8100

Dated: September I1, 2006

Page .I,

Frederick L. Cottrell, III (425conrell@ if cornAnnie Sbip Gaza 04093)Baca@rl_°.comRichards, Layton & Finger, P.A.One Rodn.cy Square920 North King, StreetWilmington, DE 19801302-651-7700.Attorneys for Defendant Counterelaimant

Rexam Beverage Can Co.

RU l •3057074.1


.FROM RUF (MON) 9,11'06 18:40/ST. 18:35/NO. 4864902441 P 19

VERIFICATION

1, Timothy Turner, being (Idly sworn, state that I am the Manager - End

Development , for Rexam Beverage Can Company, have read the foregoing Interrogatory

responses and, believe that the information contained in the answers is true and correct

based on the use of channels of communication which I ivould normally rely upon in nay

position with Rexam Beverage Can Company As presently informed , Rexarn Beverage

Can Company understands Cleat it is bound by the information set forth in the foregoing

Interrogatory responses unless future information received indicates that a correction

must be made.

Date:

Sworn to before me this

of September 1—-, 2006

Y

Notary Public -My commission expires an

I'^^i^culivn

't'imothy Turner. *itle:


.FROM RUF (MON) 9.11'06 18:401ST. 18:351NO. 4864902441 P 20

UNITED STATES DISTR ICT COURTDISTRICT OF DELAWARE

C:ERTI ,1VCATE OF SERVICE

I hereby certify that on September 11, 2006, true and correct copies of the foregoing were

caused to be served on counsel of record by hand delivery at the following address as indicated:

VIA HAND DELIVERYBarry 1_'VI. KlaymanWolf, Block, Schorr and Solis-Cohen 1.I.,PWilmington Trust Center1100 North Market Street, Suite 1001Wilmington, DE 19801

VIA FACSIMILEDale M, ITeistWoodcock Washburn LLPOne Liberty Place, 46th FloorPhiladelphia., PA 19103

VIA IEI ,T_CT'RQ_ °C MAILChad E. [email protected] Washburn LLPOne Liberty Place, 46th FloorPhiladelphia, PA 19103

ITU .;* ' VA/rAnnie Shea Gaza (94093)

RLH-2968885-!



IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF DELAWARE

CROWN PACKAGING TECHNOLOGY, )INC,, Plaintiff, and CROWN CORK. & SEAL )USA, INC.,

1Plaintiff and Counterclaim Defendant , ) Civil Action No . 05-608 (KA7)

V-

REXAM BEVERAGE CAN CO., }

9Defendant Counterclaimant. )

NO'T'ICE OF SERVICE

PLEASE TAKE NOTICE *.hat on Septeinber ', 1, 2006: counsel for defendant

counterclaimant served copies of Defelidant-C:ourrtercla;inant Rexam Beverage Can Company's

Second Supplemental Responses to Crown Technology's and Crown USA's Interrogatories No.

10 and '1 t in Light of'Plaintiffs' December 21, 2005 Letter upon the following counsel of record

in the manner indicated beloNv:

'VIA HAND DELIVERY VIA ELECTRONIC MAILBarry M. Klayman Chad E. ZieglerWolf, Block, Schorr and Solis-Cohen LLP Woodcook Washburn LLPWilmington Trust Centcr One Liberty Place, 46a' Floor1100 North Market Street Philadelphia, PA 19103Suite 1001Wilmington, DE 19801

VIA FACSIMILEDale M. HeistWoodcock Washburn LLPOne Libertv Place, 46th FloorPhiladelphia, PA 19103

RLF1.3057076-1


TROM RUF

Of Counsel:George P. McAndrewsSteven J. IlamptonRichard T . McC.aulleyGerald C . WillisPaul W . McAndrewsMcAndrews , Held & Malloy, Ltd.500 W . Madison Street , Suite 3400Chicago, IL 60601Tel: 312-775-8000Fax: 312-775-8100

Dated : Scptcmbcr 11, 2006

(ICON) 9.11'06 18:40/ST. 18:38/NO. 4864902441 P 22

Frederick L. Cottrell, III (4125cottrel%'^xlf comAnne Shea Gaza (#4093)gaza(czlrll.cumRichards, Layton & Finger, P.A.One Rodney Square920 North Ting StreetWilmington, DE 19801302-651-7700Attorneys for Defendant Counterclaimant


RLH-30570 76-1 2


-FROM AZ&F (MON) 9,11'06 18:40/ST. 18:351NO.4864902441 P 23

UNITED S'P'ATES DISTRICT COURTDISTRICT OF DELAWARE

CE T'-

FATE OF SERVICE

I hereby certify that on Septeu;ber 11, 2006_ I c',tusetl to be served by hand delivery the

foregoing document and electronically filed the same y,vith the Clerk of Court using CM/ECF

which will send notification of such fli-g(s) to the follov,ing:

Barry M. K.laytnanWolf, Block, Schorrand Solis-Cohen LL PWilmington Trust Center1100 North MarketStreet, Suite I K11Wilmington, D 19801

I hereby certify that on September 11, 2006 1 caused to be sent in the manner indicated

below the foregoing document to the follo\r,ing non-registered participants:

VIA FACSIMILEDale M. DeistWoodcock Washbum LLPOne Liberty Place, 46th FloorPhiladelphia, PA 19103

VIA ELECTRONIC MAILChad E. ZieglerWoodcook Washbum LLPOne Liberty Place, 46th FloorPhiladelphia, FA. 19103

Anne Shea Gaza (#4093) ;JGaza arl-l eomRichards, Layton & Finger, P.A.One Rodney SquareP-O. Box 551Wilmington, Delaware 19899(3022) 65 1 - -1 700

RLP1-3000491:-1


,FROM RX (MON) 9. 11' 06 8:41/ST.18:35/N0.4864902441 P 24

IN THE UNI'T'ED STATES DISTRICT COURTFOR. THE DISTRICT OF UELAWARE

CROWN PACKAGING TECHNOLOGY,TNC., Plaintiff; and CROWN CORKSEAL USA, INC.,

i'

Plaintiff and Counterclaim )Defendant,

V.

REXAM BEVERAGE CAN COMPANY, )

Civil Action No. 05-608 (KAJ)

Defendant and Counterclainn nt. 1.i

DEF +'NDANT-COUNTERCLAI ; NT REXAM BEVERAGE CAN COMPANY'SSECOND SUPPLEMENTAL S- ONSES TO CROWN TECHNOLOGY'S AND

CROWN USA 'S INTERROGATORIES NO. 10 AND 11 IN LIGHT OFPLAINTIFFS ' :DECEMBER 21.2005 LETTER

Defendant-Counterclaim,cint I (. xarn Beverage Can Company ("Rexam "), through

its counsel, hereby submits its general objections , specific objections and supplemental

responses to Crown Packaging Technology, Inc.'s acid Crown Cork LC Seal USA, Inc.'s

("Plaintiffs") Interrogatories No. 10 and I I and December 21, 2005 letter.

GENERAL OBJECTIONS:

Rexam objects to Plaintiffs' Interrogatories to the extent they seek infon -nation,

documents or things protected by the attorrlcy-client privilege , are immune from

discovery pursuant to the work product doctrine , or are protected or immunized by any

other applicable privilege , immunity, doctrine or protection from discovery . All of the

following responses and answers are made subject to this objection and none of the

following responses or answers , none of the information, documents or things identified in

RLF 1-345?0-71-1


^FAOM RUF (MON) 9.11'06 18:41/ST. 18:35/NO. 4864902441 P 25

these Interrogatory responses, and none of the responses or answers to any other discovery

attempts by Plaintiffs (including , but not limited to, questions posed a t any oral deposition)

will include any such privileged , protected or im nune information , documents or things.

Rexam objects to each Interrogatory , including all- accompanying Definitions and

Instructions , to the extent that they attempt to impose upon Rexam discovery obligations

beyond those rewired by the Federal Rules of Civil Procedure, the Local Rules of the

US. District Court for the District of Delaware and/or judge specific rules and/or the

Court's scheduling order establishing a discover-\, schedule and pretrial requirements.

Rexam objects to Plaintiffs' definition of the phrase "provide a detailed

description of the I`aclual basis" tc, the extent it residers the scope of any Interrogatory

overly broad and/or unduly burdensome . Rexam objects to Plaintiffs' Interrogatories to

the extent they pertain to former counsel, agents, employers or employees or rather

persons who formerly acted on behalf of Rexam . Rcxam cannot reasonably be expected

in all instances to speak now for former counsel, agents or employees or other persons

who formerly acted on behalf of Rexam.

Rexam objects to each Interrogatory and each Definition and /or Instruction to the

extent it is overly broad, unduly burdensome , va&rue, ambiguous , indefinite , lacking in

reasonable particularity , untimely, premature or socks information , documents or things

uniquely in the possession , custody or control of Plaintiffs , its divisions , affiliates,

officers, directors, eInlployccs , agents , represmitativcs, distributors and/or customers.

Page 2

RU I -305'0? 1-1


-FRONT RUF (MON) 9.11'06 18:411ST. 18:351NO. 4864902441 P 26

To the extent that Rexam provides a response arguably within the scope of any

definition set forth by Plaintiffs, su -h response by Rexasn shall not be construed to be an

admission by Rexam as to the validity or scope of any such definition.

Rexun objects to each Interrogatory to the extent that it seeks confidential,

proprietary , ancVor sensitive business information . ,.'My answers , responses , documents,

things or information provided by Rexam are subject to the provisions of the Protective

Order entered in this case.

Discovery is ongoing , and Rexam is continuing its preparation for trial. All

responses to the following Interrogatories are based on information presently known to

Rexam after a reasonable effr.. rt to compile in,fonnnation called for by these

Interrogatories. All answers are given without prejudice to Rexam ' s tight to supplement

and/or modify its responses at a later time . in addition , Rexam ' s objections as set forth

herein are made without prej to Rexam's right to assert any additional or

supplemental objections.

SUPPLEMENTAL RESPONSES

1NTERROG .A.TOR1' NO. 10:

Provide a claim chant and detailed description of the factual basis for Rexaam'sallegation that Crown is infringing claims of the 230 Patent by its making , using, andselling of the three can ends attached hereto as Exhibits 1-3. The detailed descriptionshould include , but should not be HiTiited to, an identification of the asserted claims-, anidentification of the Crown product accused of infringement ; an explanation as to whichclaims are allegedly infringed either literally or under the doctrine of equivalents; anexplanation of the claim construction of the limitations of each claim alleged to be

infringed , and an explanation as to why each such cairn timitation is /net (either literally

and/or. under the doctrine of equiva ents).

Page 3

RLF1.3057071-1


TROM RUF (MON ) 9,11'06 18:421ST, 18:351N0 . 4864902441 P 27

RESPONSE TO INTERROGA TORY NO. 10:


burden, on Rexam with respect to contentions that may , due to discovery documents and

things that have not been produced to date , in particular design changes to the score

profiles of Crown ' s can ends , and other developments of this action, change . Nowuvver,

pursuant to opposing counsel ' s December 21, 2005 letter and Rexam's Supplemental

Responses to Interrogatory No. 10 the following supplemental response includes

Rexam ' s basis for asserting the °230 Patent.

Subject to the above stated objections and the Gcneral Objections , Rcxann

responds in part to Interrogatory Nc;. 10 as follows.

Rexam asserts that Cruwn has infringed claim 21, of the '230 patent . Claim 2

depends fi-om claim I, the preamble of which recites:

An end member for a container having a circumferential sidewall, the endmember having a peripheral seaming edge adapted to be integrallyconnected to the sidewall , and having a central panel wall with a meansfor opening a frangible panel segment of the panel ,vall, the end membercomprising;

Rexam construes this preamble to require a can end that includes a peripheral

edge that is formed to be seamed to a can body and also has a central panel, a frangible

panel , acid a means for opening the frangible panel as further described by the claim.

a rivet formed in the central panel and adapted to integrally attach a tablever to the panel, the tab having a nose portion overlying at least a vent

,ion of the frangible panel segment and having a lift end opposite saidregnc)se;

Rexam construes this licnitition to require that the central paned of the: claimed

end member forms a rivet that can be deformed to retain a tab to the central panel, as

Page 4

K)-F1-305+J-t-1


-FROM RUF (ICON) 9.11'06 18:421ST. 18:35/K 4864902441 P 28

does rivet. 44 as depicted by Fig. 3 of the `230 P atent and as described at col. 5 lines 54 ...

55. Rexam further construes this limitation to require a tab , as tab 42 shown by Figs. I

acid 3 of the ` 230 patent that has a "nose portion ," portion 50 of tab 42 , that is adjacent to

a frangible panel , and a lift end, such as lift end 46 oi'the tab 42.

a primary score groove in the central panel wall defining an outerperimeter of the frangible ;pa.nel segment, the score groove having a firstend adjacent the vent region, and a second end joined to the first end by acurvilinear segtzient ol'the score groo-i,e,

Rexam construes this limitation to require that the central panel of the claimed

end member have a groove formed in the central member that extends from an end, first

end, that is near to the region of the central panel that is adjacent to the nose of the tab, to

another end, second end, and, the groove is not a straight line from the first and to the

second end. The groove defines the boundary of a fi•angible panel.

the first end and the second end being separated by a generally linearhinge segment of the central panel wall , said hinge segment being non-frangible to integrally connect the frangible panel segment to an adjacentarea of the panel; and.

Rexam construes this limifati € n. to require that a generally linear segment be

between the first and second ends of the groove and that the generally linear segment join

the fi ngible pwiel that is bounded by the groove to the central panel (during normal

operation).

a second score groove having a tail portion passing from the frangiblepanel into said adjacent area of the central panel and transecting said hinge;segment.

Rexam construes this limitation to require a score that lies at least in part in the

frangible panel and that extends into the generally linear segment between the first and

second ends of the primary score groove.

Page a

KLI-t -SUS7071-1


FROM RUF (MON) 9,11'06 18:42tsT. 18:300,4864902441 P 29

Dependent claim 2 adds the following limitation:

The end member of claim 1, wherein, the second score groove has acurvilinear segment generally parallel an extent of the primary scoregroove, said curvilinear segment being positioned on the 4ran.gible panelradially inward of the outer perimeter.

Rexarn construes this limitation to require a non-straight second score that

generally parallels the primary se id is located inside of the primary score.

Rexam in good faith belie cs lie photograph depicted below to be a portion of a

Crown can end (B64 LOE) that literally infringes claim 2 of the `230 patent. The can end

meets each of claim 2's limitations, In particular, the can end includes a rivet positioned

such that an attached tab would have a nose portion overlying the frangible panel. The

can end includes a frangible panel dr lned by a primary score groove, having a first end

(at or near "A") and a second end (at or near "B"). The can end includes a generally

linear hinge segment that begins at or near the second end of the primary score and

extends in the direction of the end of the primary score. As shown in the

photograph , the frangible panel in ^;Iudes a second score groove that lies at least in part in

the frangible panel and transects said generally linear hinge segrrient . Finally , the second

score groove is curvilinear , generally parallels the primary score , and is located radially

inward of the primary score.

Rexam further asserts that Crown is, or has, infringed claims S, 13 and 15 of the

`23011atent.

Rexam further states that ilhe current score configurations of the Super End

products that were produced by Crown are not accused of infringing the `230 Patent, but

Rexam is waiting for the production of desig n. changes and documents relating to design

Page 6

KU-1 -3(35-7 071 1.I


-FROM RUF (MON) 9.11'06 18:42/ST. 18 : 300.4864902441 P 30

changes in order to determine -whether previous designs of the score configuration of the

Super tend products infringed the `7280 Patent. (REX012219-12228.) Rexam reserves the

right to add previous Super End products to the accused products should production or

testirnony demonstrate That Crowm's Super Ends had scare eoniigurations that infringe

the `728 Patent, and seek past darna¢es ]or any such infningement. Rexam also reserves

the right to add any new SuperEnri or other end products that are subsequently discovered

and determined to infringe.

Page 7

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-FROM RUF (MON) 9.11'06 18:42/ST. 18:35/Na 4864902441 P 31

Pager J'

KLI' 1-3US7U71-1



INTERROGATORY NO. 11:

Provido a claim chart and detailed/ description of the factual basis for Rexam'sallegation that Crown is infringing claims of the 72,8 Patent by its making , using, andselling; of the three can ends attached hereto as Exhibits 1-3. The detailed descriptionshould include, but should not be limited to, an idc_ltification of the asserted claims; anexplanation as to which claims are allegedly infringed either literally or under the doctrineof equivalents,- an explanation of the claim construciion of the limitations of each claimalleged to be infringed , and an explanation as to wv y eac.h such claim limitation is met(either literally and/or Minder tre doctrine of equivalents).

RESPONSE TO INTERROGATORY NO. 11:


burden on Rexam with respect to contentions that may, due to discovery documents and

things that have not been produced, in particular design changes to the score profiles of

Crown' s can ends, and other developments of this action, change. However, pursuant to

opposing= counsel ' s December 21; .?005 letter and Rexatn ' s Supplemental Response to

Crown's Interrogatory No. 11, the following supplemental response includes Rexam's

basis for asserting the `728 Patent.

Subject to the above statzd objections and the General Objections, Rexam

responds in par'c to Interrogatory No. 11 as follows.

Rexam presently asserts that Crown has infringed claim 1 of the `728 patent. The

preamble of claim 1 recites:

An end member for a container having a circumferential sidewall , the endmember having a peripheral seaming edge adapted to be integrallyconnected to the sidewall; -and having a central panel wall with a ventregion and a means for ovening a frangible panel segment of the panelwall, the end member comprising;

Page 9

KL.F I -3uS-t17 -


-FROM RUF (MON) 9.11'06 18:43/ST. 18:35/Na. 4864902441 P 33

Rexam construes this preamble to rewire a can end that includes a peripheral

edge; that is formed to be scamcd to a can body and also has a central panel, a frangible

panel, and a means fbr opening the Langible panel.

a primary score groove in the central panel wall defining an outerperimeter of the frangible panel segment, the scurc groove having a firstend adjacent the vent regoor and a second end,

Rexam construes this limitation to require that the central panel of the claimed

end member have a groove formed in the central member that extends from an end, first

end, that is near to the region of the central panel that is adjacent to the nose of the tab,

vent region, to another end., second cnd, The groove defines the boundary of a tian6*ible

panel.

the first end and the second end being separated by a generally linearhinge segment of the central panel wall, said hinge segment integrallyconnecting the frangible panel segment to an adjacent area of the panel;

Rexam construes this limitation to require that a generally linear segment, the

hinge segment, be between the first and second ends; of the groove and that the generally

linear segment join the frangible panel that is boundcd by the groove to the central panel.

a second score groove; adjacent the second end of said primary score and adjacentsaid hinge segment to direct fracture of metal of said hinge segment in a directionaway from said second end of the score.

Rexam construes this limitation to require a score, the second score, that lies in a

location that Is adjacent the second end of the primary score and adjacent said hinge

segment, said second score serving the purpose of directing a tear in the hinge segment

away from the second end of the primary score,

Rexam further asserts that Crown is, or has, infringed claims 10 and 11 of the

`728 Patent.

Page. 10

RLFI -3057171-1


-FROM RUF (ICON) 9.11'06 18 ; 43/ST. 18 ; 35/NO. 4864902441 P 34

Rexam further states that the current score configurations of the Super End

products that were produced by Crown are not accused of infringing the `728 Patent, but

Rexam is waiting for the production of design changes and documents relating to des' 3

changes i n order to determine whether pretirious de5i has of the score configuration of the

Super End products infringed the '728 Patent. (REXt112219-12228_) Rexam reserves the

right to add previous Super End products to the accused products should production or

testimony demonstrate that Crmn': i)per Ends had scare configurations that infringe

the `72 8 Patent, and seek past damages for any such infringement . Rexam also reserves

the right to add any new SuperEnc. or other end products that are subsequently discovered

and determined to infrnge.

Page ; ?

RLri -3m?o7 ► - 1


HOM RX (MON) 9.11'06 18:43/ST. 18:35/NO, 4864902441 P 35

Page 12

RI-FI-305''0'1-t


-FROM RUF (MON ) 9.11'06 18:44/ST. 18:351NO. 4864902441 P 36

FOR THE GENERAL OBJECTIONS AND SPECIFIC OBJECTIONS TOINTERROGATORY NOS. 10 c& 112 THE LEGAL CONTENTIONS SET FORTHHEREIN AND THE LEGAL AUTHORITY SET FORTH IN THE ANSWERS TOINTERROGATORY NOS. 10 & 1.1.-

Of Counsel:George P. McAndrewsSteven 3'. HamptonRichard `r. McCaulleyGerald C, WillisPaul W. McAndrewsMcAndrews, Held & Malloy, Ltd.500 W. Madison Street, Suite 3400Chicago, IL 60601Tel: 312-775-3000Fax: 312-775-8100

Dated: September 11, 2006

Page ?5

Frederick L. Cottrell, 111 (#2555cottrell ^zr1f.coinAnne Shea Gaza (#4093)gaza@rlf cornRichards, Layton & Finger, P.A.One Rodney Square920 Noilh King StreetWilin.ington, DE 19801302-651-7700Attorneys for Defendant Counterclaimant


RLFI-305.'07:-1


-FROM RUF NON) 9.11'06 18:40T. 18:300, 4864902441 P 37

'VERIFICATION

I. Timothy Turner, being duly sworn, state that I am the of Rexam Beverage Can

Company, have read the foregoing Interrogatory responses and, believe that the

information contained in the answers is true and correct based on the use of channels of

communication which I would normally rely upon in my position with Rexam Beverage

Can Company. As presently infon-red, Rexam Beverage Can Company understands that

it is bound by the information set forth in the foregoing Interrogatory responses unless

ftiture information received indicates that a correction must be made.

Date:rimotby TurnerTitle:

Sworn to before me this __- day

of January, 2006

'Notary PublicMy commission expires on

Veryi cation

R LF 1.1057071-1


-FROM RUF (MON) 9,11'06 18:44/ST. 18:35/N0. 4864902441 P 38

UNITED S'P'ATES DISTRICT COURTDISTRICT OF DELAWARE,

CERTIFICATE OF SERVICE

I hereby certify that on September 11, 2006, true and correct copies of the foregoing were

caused to be served on counsel of record by hand delivery at the following address as indicated:

VIA HAND DELIVERYBarry M. klayrnanWolf, Block, Sc'norr and Solis-Cohen LLPWilmington Trust CenterJ 100 North Maxket Street, Suite 1001Wilmington, DE 19801

VIA FACSIMILEDale M. HeistWoodcock Wasbburn LLPOne Liberty Place, 46th FloorPhiladelphia, PA 19103

VIA ELECTRONIC MAIL.Chad E. Zieglerziealere-woodcock.comWoodcock Washburn LLPOne Liberty Place, 46th FloorPhiladelphia , PA 19103

U-blou cllt-uAnne Shea Gaza (#`4093).

R1.FI.2968885.1


FROM ALA=.F (LION) 9. 11' 06 18:35/ST. 18: 35/NO.4864902441 P 1

F ``_-JJ11SMITTAL SHEET

LAYTON & FINGEROne Rodney Square

P.O. BOX 551Wilmington, Delaware 19899

(302) 651-7700Fax(302)651-7701

Fax Confirmation (302) 651-7796

CONFIDENTIALITY NOTE : Richards, Layton and Finger, P.A. is not providing any advice withrespect to any federal tax issue in connection with this matter.

The information contained in this fax transmission is intended only for the use of the individual orentity named below and may be privileged and/or confidential. If the reader of this message is not theintended recipient, you are hereby notified that any unauthorized dissemination, distribution orcopying of this communication is strictly prohibited by law. If you have received this communication inerror, please immediately notify us by return fax, e-mail or telephone (302651-7700) and destroy theoriginal message. Thank you.

Date: September 11, 2006From: Anne Shea GazaNumber of Pages (including cover):

TO ` :. ANY PHONE # FAX #1. Dale M. 1-!cis', ''oodeock Washbuni 215-568-3100 215-568-3439

CLIENT/MATTI:R NAME:

RL& MATTER NUMBER : 140373

Z`r:I.Z C'OMM[ :NICATOR:

MESSAGE/REMARKS:

Please deliver immediately to the person(s) Ii ted ,14bove who is/are ill your office. Thank you.

IF YOU DO NOT RECEIVE ALI. "1 HE PACES OR FIND THE M TO BE ILLEGIBLE,I'IJ7ASF.. CALL (3012) 651 -7796 AS. SOON AS POSSIBLE.


FROM RL&F (MON) 9,11'06 18:36/ST. 18:35/NO. 4864902441 P 2

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF DELAWARE

CROWN PACKAGING TECIINOLOCY,INC., Plaintiff, and CROWN CORK & SEALUSA, INC.,

Plaintiff and Counterclaim Defendant, Civil Action No. 05-608 (KAJ)

V.

REXAM BEVERAGE CAN CO.,

Defendant CouBterclaimant. )}

NOTICE OF SERVICE

PLEASE TAKE NOTICE teat on SepteinbcT 11, 2006, counsel for defendant

counterclaimant served copies of Defendant-Counterclaimant Rexam Beverage Can Company's

Supplemental Responses to Crown Technology's and c7rown USA's Amended Interrogatories

Nos. 7 Through 9 upon the following counsel of record in the manner indicated below:

VIA HAND DELIVER'Y' VIA ELECTRONIC IvIAIL

Barry M. Klayrrtaai Chad E. ZieglerWolf, Block, Schorr and Solis-Cohen LLP ;Voodcook Washburn LLPWilmington Trust Center One Liberty Place, 46`h Floor

1100 North Market Street. Philadelphia, PA 19103

Suite 1001Wilmington, DE 19801

VIA FACSIMILEDale M. H eistWoodcock '^A'ashbum LL,°One Liberty Place, 46th FloorPhiladelphia, PA 19103

RLF1 -3057078-1


FROM A1,&F

Of Counsel:George P, McAndrewsSteven J. HamptonRichard T . McCaulleyGerald C. WillisPaul W. McAndrewsMcAndrews, Held & Malloy, Ltd.500 W. Madison Street, Suite 3400Chicago, 11, 60601Tel: 312-775-4000=ax: 31<-775-5100

Dated: September 11, 2006

(MON) 9,11'06 18:361ST. 18:351N0 , 4864902441 P 3

11#Frcden'ck L. Cottrell, 111 (#25cottrcll @,rlf cornAnne Shea Gaza (##4093)gaza@rl f. cormRichards, Layton & Fing4r. P.A.One Rodney Square320 North King StreetWilmington, DE 19801302-651-7700Attorneys for Defendant Counterclaimant


KLF 1 -3057078-1 2


FROM RUF (MON) 9.11'06 18:36/ST. 18:35/NO. 4864902441 P 4

UNITED STA-TES DISTRICT COURTDISTRICT OF DELAWARE

CETT I ,ATE OF SERVICE

1 hereby certify that on September 11, 2006, 1 caused to be served by hand delivery the

foregoing document and electronically filed the same -with, the Clerk of Court using CM/FCF

which will send notification of such ding(s) to the follo-Aing:

Barry M. KlayrlanWolf, Block, Schorrand Solis-Cohen UPWilmington Trust Center1100 North MarketStreet, Suite 1001Wilmington, DF 19801

1 hereby certify that on September I I. 2006 I caused to be sent in the manner indicated

below the foregoing document to the foilov inn non-registered participants:

V.44 FACSIMILEDale M. HeistWoodcock Washburn LLPOne Liberty Place, 46th FloorPhiladelphia, FA 19103

VIA ELECTRONIC MAILChad h. Ziegler\ oodcook Washburn LLPOne 1,iberty Place, 46`x' FloorPhiladelphia, PA 19103

Richards, Layton & Finger, P.A.One Rodney SquareP.O. Box 551Wilmington , Delaware 19899(302) 651-7700

Amic Shea Oaza (#-4093)[email protected]

RLF1-3000496-1


Exhibit 29


exhibit 28 · will include any such privileged, protected or immune information, documents or...

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