NOTE: This order is nonprecedential United States Court of Appeals for the Federal Circuit WHITSERVE, LLC, Plaintiff/C0un,terclaim Defendcmt-` C`ross Appellan,t, AND WESLEY W. WI-IITMYER, JR., Third Party Defendant- Cross Appellant, lo V. COMPUTER PACKAGES, INC., Defendant/Counterclaim Plaintiff- Appellant. 2011-1206, -1261 Appea1s from the United States District C0urt for the District of C0nnecticut in case n0. 06-CV-1935, Judge Alfred V. C0vell0. ON MOTION Bef01'e O’MALLEY, Circuit Judge.

wH1rsERvE v. ooMPU'rER PAcKAeEs 2 0 R D E R Whitserve, LLC and Wesley W. Whitmyer, Jr. (W hit- serve) move to preclude Computer Packages, lnc. (CPl) from raising arguments in its reply brief challenging the district court’s construction of the term "automatically” or, in the alternative, for leave to file a 4,000 word sur-reply. CPI opposes. Whitserve replies _ In the motion, which was filed before CPI Eled its re- ply brief, Whitserve argues that CPI did not sufficiently raise arguments in its opening brief challenging the district court’s claim construction and that any such arguments are waived. Whitserve also raises this concern in its responsive brief CPl responds to the motion by asserting that it raised its disagreement with the con- struction of the term “automatically” in its brief and that by appealing the district court’s denial of its_motion for judgment as a matter of law on non-infringement it has necessarily challenged the district court’s claim construc- tion. We believe the better course is to allow the merits panel to consider, if appropriate, whether CPl's argu- ments are permissible, in view of all of the briefing VVhitserve may of course at oral argument also raise any issues concerning arguments in CPI's reply brief. We grant Whitserve leave to argue, in its final reply brief, that arguments in CPI's reply brief are impermissible, and Whitserve may seek enlargement of its word limita- tion for that brief if CPI's reply brief justifies such a request. Accordingly, I'r ls ORDERED THAT:

3 WHITSERVE V. COMPUTER PACKAGES The motion is denied without prejudice A copy of this order shall be transmitted to the merits panel assigned to hear this case, to inform the panel that the motion was denied without prejudice. FoR THE COURT 3 0 mill /s/ J an I'lorbaly Date J an Hor`oa1y Clerk cc: Gene S. Winter, Esq. John A. Krause, Esq. FILED EI.S. CDURT 0F APPEALS FOR 820 THE FEDERP.L ClRCUlT ser 3 0 mm lAN HORBALY CLERK