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Akeena Solar, Inc. v. Zep Solar

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


February 11, 2010

AKEENA SOLAR, INC., A DELAWARE CORPORATION; AND ANDALAY SOLAR, INC., A CALIFORNIA CORPORATION, PLAINTIFFS,
v.
ZEP SOLAR, INC., A CALIFORNIA CORPORATION; GLOBAL RESOURCE OPTIONS, INC. DBA GROSOLAR, A DELAWARE CORPORATION; AND HIGH SUN TECHNOLOGY, INC., A CALIFORNIA CORPORATION, DEFENDANTS.

The opinion of the court was delivered by: Honorable Jeffrey S. White United States District Judge

STIPULATION AND [PROPOSED] ORDER TO CHANGE TIME OF DEFENDANTS' MOTION TO STAY BRIEFING SCHEDULE RE [Civil L.R. 6-2] Honorable Jeffrey S. White United States District Judge

pursuant to Civil Local Rule 6-2 with Defendants Zep Solar, Inc., Global Resource Options, Inc. dba groSolar, and High Sun Technology, Inc. ("Defendants") that that Plaintiffs' deadline to file an opposition to Defendants' motion to stay this action be continued five days from February 11, February 18 to February 23, but that the hearing date on Defendants' motion to stay shall remain March 5, 2010 at 9:00 a.m.

Plaintiffs Akeena Solar, Inc. and Andalay Solar, Inc. ("Plaintiffs") hereby stipulate 2010 to February 16, and that Defendants' related reply deadline be continued five days from

STIPULATION

WHEREAS, on October 22, 2009, Plaintiffs filed this action against Defendants charging Defendants with infringement of U.S. Patent No. 7,406,800 (the "'800 Patent") and seeking a declaration of non-infringement of Defendants' U.S. Patent No. 7,592,537 (the "'537

WHEREAS, on January 27, 2010, Defendants filed a request for inter partes reexamination of the '800 Patent with the United States Patent and Trademark Office ("PTO") and on that same day, filed a motion to stay this action pending reexamination of the '800 Patent, setting the hearing date for March 5, 2010 (Declaration of Neil A. Smith, ¶ 2; Docket No. 24.); 2010, the day after Plaintiffs' opposition to the motion to stay would have been filed. On February 9, 2010, this Court granted Defendants' separate motion to dismiss Plaintiff's claim for a declaratory judgment of non-infringement of the '537 Patent (Docket No. 29), ruling sua sponte and in advance of the February 12, 2010 hearing date on the motion to dismiss, thereby eliminating one of the two patents at issue in the action (Defendants' '537 Patent) and altering the overall landscape of the action and the arguments pertaining to a potential stay of the action;

WHEREAS, Plaintiffs have represented they were preparing their opposition to the Patent") (Docket No. 1.);

WHEREAS, Plaintiffs' opposition to Defendants' motion to stay is currently due on February 11, 2010. Defendants' motion to dismiss was scheduled to be heard on February 12, motion to stay based on a belief that Defendants' '537 Patent would still be a part of the case at the time of their opposition, and that they now need a brief extension of five days to be able to account for the new status of the case in their opposition to the motion to stay (Smith Declaration, ¶ 3);

WHEREAS, furthermore, Plaintiffs have represented that Plaintiff Akeena Solar, Inc. is a public company whose client representative is very busy preparing for an earnings call this week, and that the client representative's input is needed as Plaintiffs readjust and revamp their opposition arguments, but that the client representative is unavailable this week due to the earnings call (Smith Declaration, ¶ 4); scheduled to be giving a speech in southern California on February 11, 2010 (the current due date of Plaintiffs' opposition to the motion to stay) and his availability and input is needed to craft a new opposition (Smith Declaration, ¶ 5);

WHEREAS, furthermore, Plaintiffs have represented that their lead counsel is

WHEREAS, Monday, February 15, 2010 is a federal holiday (Presidents Day);

WHEREAS, the only previous modifications of time in this action were when Plaintiffs stipulated on November 11, 2009 to extend Defendants time to answer or otherwise respond to the Complaint (Docket No. 8), and when a slightly new case management schedule was ordered by the Court on December 3, 2009 after this action was reassigned from a magistrate judge to this Court (Docket No. 12); and effect on the overall progress of this case, but will simply extend the briefing dates pertaining to (Smith Declaration, ¶ 6);

WHEREAS, the time extensions requested herein should not have an appreciable Defendants' motion to stay by five days and will not affect the hearing date on the motion to stay

NOW, THEREFORE, IT IS HEREBY STIPULATED, by all parties to this action, through their counsel of record, that Plaintiffs' deadline to file an opposition to Defendants' motion to stay be continued from February 11, 2010 to February 16, and that Defendants' related reply deadline be continued from February 18 to February 23, but that the hearing date on Defendants' motion to stay shall remain March 5, 2010 at 9:00 a.m.

ORDER

PURSUANT TO STIPULATION, IT IS SO ORDERED. However, the Court HEREBY CONTINUES the hearing to March 19, 2010 at 9:00 a.m.

20100211

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