THANKS SILVER,

Important part of todays re-reply to VIVITAR by eDIGITAL

Motion To Consolidate Cases And Transfer And Reassign Action (“Reply”).

First, Vivitar admits for the first time in its Reply that e.Digital will be prejudiced by a

consolidation, transfer and reassignment of this action to the Judge handling the

, but

argues that the prejudice would be minimal. (Doc. No. 13, Vivitar’s Reply at 2 (“Any prejudice

to e.Digital is minimal....”). Similar to Vivitar’s other arguments in its Motion (Doc. No. 30) and

its Reply, Vivitar bases this argument on incorrect assumptions, rather than facts. Although the

trial in this action is scheduled to begin in August of 2010, the parties already have commenced

2

discovery and have made disclosures required by the Local Patent Rules. On the other hand, the

Court in the

has not even set a trial date or the intervening deadlines between now

and the trial. Thus, it is impossible for Vivitar to accurately characterize the prejudicial delay

that e.Digital may suffer as “minimal” until after the Court in the

enters a scheduling

order. If any assumption is to be made, the logical assumption is that the

that

commenced six months after this action will likely trail this action by several months, if not a

year.

Second, Vivitar’s argument that its Motion should be granted because of an alleged

conflict related to the involvement of Judge Ward in this case and Thomas J. Ward, Jr., who is

local counsel in the

, is circular. Vivitar argues that the alleged conflict necessitates

the transfer and reassignment requested in Vivitar’s Motion; however, the alleged conflict would

not exist but for Vivitar’s Motion. Accordingly, Vivitar’s argument does not justify the Court

disregarding Local Rule CV-42, as proposed by Vivitar and based on an alleged conflict created

by Vivitar’s Motion itself.