Legal Question in Intellectual Property in California
For a patent infringement case, in the Northern District of California-San Jose Division, I was issued a "Notice to Dismiss" by the defendant for "failure to state a claim upon which relief can be granted" pursuant to FED. R. CIV. P. 12(b)(6) or, in the alternative, to strike pursuant FED.R. CIV. P. 12(f).
At the time I submitted my claim to the court, I did understand that it was not strong but, as of today, I do have facts that pertain to infringement on my patent but, I have to prepare what is called; "Motion to Proceed"
The defendant(s) lawyer who prepared the "Notice to Dismiss" quoted "Bell Atl. Corp. v. Twombley, 550 U.S. 544 and Ashcroft v. Iqbal,_ U.S._, 129 S. Ct. 1937 (2009)
From reading the defendants "Notice to Dismiss" I am sure that I can challenge and perhaps win the argument and be granted "Motion to Proceed" However, my fear is that I cannot quote the examples such as he does (above) because I do not have a legal background. I do however, have access to the University of California-Berkeley, Boalt School library and I am sure that I can find what I need the library. BUT, IN ORDER TO PREPARE THIS "Motion to Proceed" WOULD I HAVE TO QUOTE LAWS AS THE DEFENDING ATTORNEY OR, COULD I PREPARE IT BASED ON JUST THE FACTS OF INFRINGEMENT?
What I am claiming damage wise is; 35 U.S.C. 154(d), sections 102(a), (b) and 103(a). My "Motion to proceed" is due on May 31st 2011 and I am afraid that I will not have it finished by then, IS THERE SOME TYPE OF LEGAL PROCEDURE TO ASK THE JUDGE FOR MORE TIME TO PREPARE A "Motion to Proceed"? or, should I be able to find every thing I need today, within the law library?
If so, what publications would I use, in order to win the argument?
I UNDERSTAND THAT I AM IN NEED OF AN ATTORNEY, SO PLEASE DO NOT RESPOND IN THAT WAY. I JUST NEED TO KNOW WHAT TO DO BETWEEN NOW AND MAY 31ST, BECAUSE IT IS I KNOW I WILL NOT HAVE REPRESENTATION BY MAY 31ST.
1 Answer from Attorneys
There is no motion to proceed. You oppose the motion to dismiss. You don't necessarily need to file a motion to oppose a motion. You can always ask for a continuance if you need more time.
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