NOTE: This order is nonprecedential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

