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APEX’S MOTION TO SUBSTITUTE SUMMARY JUDGMENT APPENDIX ITEM (WITH CONSENT OF PLAINTIFFS)
Apex Biotechnology Corporation and Hypoguard USA, Inc. (collectively “Apex”), by their attorneys, move for entry of an Order substituting the attached “Declaration of Anthony P.F. Turner with Corrected Paragraph No. 30” (“Substitute Declaration”) (attached as Exh. 1) for the Declaration of Anthony P.F. Turner that was attached as Appendix item number 2 to “Apex’s Motion for Summary Judgment of Noninfringement of Claim 1,” (“Summary Judgment Motion”), which was filed October 6, 2005. In support of this motion, Apex states:

1. During the editing and completion of Dr. Anthony P.F. Turner’s declaration, a word was inadvertently omitted from paragraph 30 on page 6. (See Exh. 2, “Affidavit of Anthony P.F. Turner Regarding Typographical Error in Paragraph No. 30,” at para. 2.) Namely, paragraph 30 should have read, consistent with the surrounding paragraphs of Dr. Turner’s declaration, “In consideration of the Court’s Order on Claim Construction and my understanding of U.S. Patent No. 5,366,609, after operating the Assure 3 it is my opinion that the Assure 3 meter does not meet the requirements of claim 1 of the patent.” The “not” was inadvertently omitted from the original filing. The attached Substitute Declaration includes the omitted word with no further text ual revisions. Exh. 1, at 6.

2. On October 18, 2005, Shannon D. Landreth, counsel for Apex, contacted Helen
K. Geib, counsel for Plaintiffs, regarding the typographical error. Plaintiffs consented to the filing of the Substitute Declaration. No party will be prejudiced by this substitution of the omitted language. Apex has served all parties with this motion and the attached Substitute Declaration.
WHEREFORE, Apex prays that this Court enter an Order in the form submitted
herewith, granting the motion to substitute the attached “Declaration of Anthony P.F. Turner with Corrected Paragraph No. 30,” and direct the clerk to detach the attached Substitute Declaration and substitute it for Append ix item number 2 in support of Apex’s Summary Judgment Motion, filed on October 6, 2005.

DATED: October 18, 2005
APEX BIOTECHNOLOGY CORP. and HYPOGUARD USA, INC.