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Baxter Healthcare Corp. v. Fresenius Medical Care Holdings

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION


March 18, 2010

BAXTER HEALTHCARE CORPORATION, BAXTER INTERNATIONAL INC., BAXTER HEALTHCARE SA, AND DEKA LIMITED PARTNERSHIP, STIPULATION OF REMOVAL OF LIBERTY CYCLER FUNCTIONALITY PLAINTIFFS AND COUNTER-DEFENDANTS, RELATING TO, AND DISMISSAL OF, U.S. PATENT NO. 5,431,626
v.
FRESENIUS MEDICAL CARE HOLDINGS, INC., D/B/A FRESENIUS MEDICAL CARE NORTH AMERICA, AND FRESENIUS USA, INC., DEFENDANTS AND COUNTER-CLAIMANTS.

The opinion of the court was delivered by: Honorable Phyllis J. Hamilton United States District Judge

STIPULATION OF REMOVAL OF LIBERTY CYCLER FUNCTIONALITY RELATING TO, AND DISMISSAL OF U.S. PATENT NO. 5,431,626

WHEREAS, the Court has withdrawn its construction of the claim limitation "pressure conveying element" as recited in U.S. Patent No. 5,431,626 ("the '626 Patent") and has invited further briefing regarding the proper construction of this limitation, the limitation "pressure transfer element," and whether the claims reciting these limitations are indefinite; peritoneal dialysis cycler infringes the claims of the '626 Patent subject to Fresenius' agreement not to employ certain designs as described below before the expiration of the '626 Patent; considered and rejected using an inflatable air bag to actuate the cycler's safety bar in favor of using a pair of pneumatically actuated cylinders to actuate the cycler's safety bar; considered and rejected using an inflatable air bladder behind the pump face in favor of placing an inflatable air bladder in the door; all claims and counterclaims with respect to claims 34, 36-38, 41, 44, and 45 of U.S. Patent No. 5,431,626;

WHEREAS, Plaintiffs seek to dismiss their allegations that any version of the LibertyTM

WHEREAS, during the development of the LibertyTM Cycler, Fresenius engineers

WHEREAS, during the development of the LibertyTM Cycler, Fresenius engineers

WHEREAS, separately and apart from the foregoing recitals, the parties agree to dismiss

NOW, THEREFORE, the parties and their counsel of record stipulate as follows:

* Defendants agree that they will not make, use, sell, or offer for sale within the United States or import into or export from the United States any peritoneal dialysis machine using an inflatable air bag to actuate the cycler's safety bar or using an inflatable air bladder behind the pump face of the cycler or mere colorable variations thereof until after the expiration of U.S. Patent No. 5,431,626;

* Plaintiffs agree the current commercial version of the LibertyTM Cycler is a peritoneal dialysis machine that does not use an inflatable air bag to actuate the cycler's safety bar or use an inflatable air bladder behind the pump face of the cycler;

* Although Plaintiffs contend the current commercial version of the LibertyTM Cycler and prior versions of the LibertyTM Cycler infringe the claims of U.S. Patent No. 5,431,626 under the doctrine of equivalents and Defendants disagree with that contention, Plaintiffs dismiss from this suit, without prejudice and subject to the provision immediately above, U.S. Patent No. 5,431,626;

* Although Defendants contend the asserted claims of U.S. Patent No. 5,431,626 are not infringed and are invalid and Plaintiffs disagree with these contentions, Defendants dismiss from this suit, without prejudice, and subject to the provisions immediately above, U.S. Patent No. 5,431,626;

* The parties agree that each shall bear its own costs and attorneys' fees as to such claims, defenses and counterclaims; and

* The parties agree that this stipulation is not an injunction but reserve all rights and remedies to enforce its terms.

IT IS SO ORDERED.

20100318

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