UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
November 16, 2009
CELLECTRICON AB AND GYROS AB PLAINTIFFS,
FLUXION BIOSCIENCES, INC., ET AL. DEFENDANTS.
The opinion of the court was delivered by: Ronald M. Whyte United States District Court Judge
STIPULATION AND  ORDER RE DEFENDANT'S MOTION TO DISMISS, PLAINTIFFS' AMENDED COMPLAINT AND POTENTIAL DISCOVERY REGARDING WILLFULNESS
Pursuant to Civil Local Rule 7-12, Plaintiffs Cellectricon AB and Gyros AB ("Plaintiffs") and Defendant Fluxion Biosciences, Inc. ("Defendant"), through their respective counsel, stipulate as follows and respectfully request that the Court enter the following Proposed Order:
for willful infringement with respect to the patents in suit; the alternative for a more definite statement regarding the claims for willful infringement;
removes the claims for willful infringement without prejudice to Plaintiffs seeking further leave to amend the complaint, if appropriate, to reallege claims for willful infringement upon the completion of discovery regarding such claims, and Defendant reserves the right to move to dismiss or to otherwise attack any such claims for willful infringement;
alleged willful infringement and to the extent Defendant intends to or has relied upon the advice of counsel, Defendant shall comply with the Patent Local Rules regarding the disclosures pertaining to any such reliance on advice of counsel, and Defendant shall not object to such discovery or disclosures based on the absence of claims of willful infringement in the First Amended Complaint, although, Defendant reserves the right to object to such discovery to the extent it becomes burdensome, oppressive or overbroad;
their amended complaint within five court days of the Court's order, if any, pursuant to this Stipulation;
court days of receipt of service of the First Amended Complaint, which service shall be effective upon receipt by counsel of record for Defendant.
action, by and through their respective counsel of record, and subject to the approval of the Court:
shall amend its complaint to delete all claims for willful infringement without prejudice to Plaintiffs
WHEREAS Plaintiffs filed a complaint in the above-entitled action which contained claims
WHEREAS Defendant has filed a motion to dismiss the claims for willful infringement or in
WHEREAS the parties have agreed that Plaintiffs will file an amended complaint which
WHEREAS Plaintiffs reserve the right to conduct discovery on the issue of Defendant's
WHEREAS Defendant's motion to dismiss will be taken off calendar and Plaintiffs will file
WHEREAS, Defendant shall file an answer to the First Amended Complaint within five
ACCORDINGLY, IT IS HEREBY STIPULATED AND AGREED by the parties to this
1. Within five court days of this Court's order, Plaintiff shall have leave to amend and to seeking further leave of court, if appropriate, to amend its complaint to reallege claims for willful infringement following discovery on the issue of willful infringement;
court days of service of the First Amended Complaint on its counsel of record;
interrogatories, request for admissions, request for production of documents, and deposition discovery, on the issue of willful infringement, and Defendant shall not object to such discovery on the grounds that the First Amended Complaint does not contain claims for willful infringement, although Defendant reserves its rights to object if such discovery becomes overbroad, burdensome or oppressive; and reliance upon advice of counsel, whether written or oral.
Dated: November 13, 2009 KRIEG, KELLER, SLOAN, REILLEY & ROMAN LLP
2. Defendant shall file its answer to Plaintiff's First Amended Complaint within five
3. Plaintiff shall be entitled to conduct reasonable discovery, including but not limited to
4. Defendant shall comply with the Patent Local Rules regarding the disclosure of
KENNETH E. KELLER Attorneys for Plaintiffs CELLECTRICON AB AND GYROS AB Dated: November 13, 2009 ORRICK HERRINGTON & SUTCLIFFE LLP ERIC L. WESENBERG Attorneys for Defendant FLUXION BIOSCIENCES, INC.
I hereby attest that I have been authorized by Eric L. Wesenberg to execute on his behalf this Stipulation and [Proposed] Order Re Amended Complaint. Executed on this 13th day of November, 2009, at San Francisco, California.
Kenneth E. Keller
ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED.
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