DEFENDANTS’ NOTICE OF SUPPLEMENTAL AUTHORITY FOR CONSIDERATION IN CONNECTION WITH MARKMAN CLAIM CONSTRUCTION

Defendants hereby tender a copy of a December 9, 2010 decision of the Court of Appeals for the Federal Circuit. Erbe Elektromedzin GmbH v. Canady Technology LLC, ___ .3d ___, 2010WL 5050544 (Fed. Cir. 2010). In Erbe, the Federal Circuit sustained the district court’s interpretation of the claim term “low flow rate” based on statements in the prosecution history made by the inventors to distinguish the claims over prior art, in spite of the fact that the district court’s construction may have rendered a dependent claim “mere surplusage.” Id. at *5 - *8. This case is relevant in opposition to the arguments made on pages 21-24 of e.Digital’s responsive claim construction brief (Docket No. 303).

Dated: January 27, 2011