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December 8, 2008: Our surreply to Russell and Katzer

Normally, one side files a motion, the other side files an opposition, and then the first side files a reply to the opposition. The reply is not supposed to carry new argument. When one side doesn't follow the rules and raises new issues in a reply, or when new facts arise, a party can ask for permission to file a "surreply" to comment on the new argument or the new facts.

Because Katzer raised new issues after opposition was filed, and because we now have additional information, we filed surreplies to both Katzer motions on December 8, 2008.

The copyright surreply refutes some of Katzer's arguments by showing that he has misquoted case law or used case law that doesn't apply. Katzer had argued that no statutory damages or attorneys fees were available to Jacobsen because the first version of JMRI wasn't registered prior to Katzer's infringement, but we showed that it doesn't matter that the version wasn't registered. As long as some versions are registered, and Katzer infringed those later versions after registration or within three months of publication, then statutory damages and attorneys' fees are available.

We filed the patent surreply because Katzer, and his intellectual property attorney Kevin Russell, who had permission to file a response but filed it 4 weeks late, filed responses in which they, once again, tried to mislead the Court. We argued that the Court has jurisdiction to hear the '329 patent because of anti-SLAPP and because Jacobsen is prevailing party. Katzer and Russell said that they disclaimed the '329 patent because of "practical considerations" and "economic reasons", and argued that our jurisdiction arguments were a motion for reconsideration. We responded to these arguments to correct the record, and discussed some new information that we had learned.

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