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Calix Networks, Inc., A Delaware Corporation v. Wi-Lan

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION


March 25, 2011

CALIX NETWORKS, INC., A DELAWARE CORPORATION, PLAINTIFF,
v.
WI-LAN, INC., A CANADIAN CORPORATION,
DEFENDANT.

The opinion of the court was delivered by: Charles R. Brey United States District Judge

Scott D. Baker (SBN 84923) Email: sbaker@reedsmith.com 2 John P. Bovich (SBN 150688) Email: jbovich@reedsmith.com 3 William R. Overend (SBN 180209) Email: woverend@reedsmith.com Jonah D. Mitchell (SBN 203511) Email: jmitchell@reedsmith.com Adaline J. Hilgard (SBN 173213) Email: ahilgard@reedsmith.com REED SMITH LLP 101 Second Street, Suite 1800 7 San Francisco, CA 94105-3659 Telephone: 415 543 8700 8 Facsimile: 415 391 8269 9 Attorneys for Plaintiff Calix, Inc. 10 e r a w KILPATRICK TOWNSEND & STOCKTON LLP a l e D David B. Perry (SBN 255925) f o e 11Email: Dperry@kilpatricktownsend.com t a t S Two Embarcadero Center, Eighth Floor P e L h L t 12San Francisco, CA 94111 n H i d e Telephone: (415) 273-7573 T I m M r o f 13Facsimile: (415) 723-7245 14Attorneys for Defendant

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Wi-LAN, Inc.

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STIPULATION AND [PROPOSED] ORDER TO CONSOLIDATE CASE NOS. CV-09-6038 CRB AND FOR ALL PURPOSES Complaint Filed: December 28, 2009

Pursuant to Federal Rule of Civil Procedure 42 and Local Rule 7-12, Plaintiff Calix, Inc., formerly known as Calix Networks, Inc. ("Calix") and Defendant Wi-LAN, Inc. ("Wi-LAN"), by 3 and through their respective undersigned counsel, hereby stipulate and agree as follows: 4

1. Calix filed the instant lawsuit against Wi-LAN on December 28, 2009. This lawsuit

5 seeks declaratory judgments that U.S. Patent No. 5,956,323 ("the '323 patent") and U.S. Patent No. 6

6, 763,019 ("the '019 patent") are invalid, not infringed, and unenforceable, and also asserts claims 7 against Wi-LAN for breach of contract and related claims. On October 10, 2010, Wi-LAN filed its 8

First Amended Answer and Counterclaim, alleging infringement of the '323 and '019 patents by 9

Calix. [Doc. # 77.]

2. On April 1, 2010, Wi-LAN filed an action, Wi-Lan v. CALIX, Inc. Case No. 2:10-CV-

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117-TJW, against Calix asserting infringement of the '323 and '019 patents in the U.S. District

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Court for the Eastern District of Texas ("the Texas Action"). On November 29, 2010, Calix filed an

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13Answer and Counterclaims, asserting the same Counterclaims in the Texas Action which it had

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14asserted as claims for relief in its earlier-filed suit against Wi-LAN in California.

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3. Pursuant to Calix's unopposed Motion to Transfer Venue filed in the Texas Action,

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16the District Court for the Eastern District of Texas, in an Order dated December 6, 2010, transferred

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the Texas Action to the Northern District of California. For the Court's convenience, the Transfer 18 19

Order is attached as Exhibit A hereto. Thereafter, the Clerk for the United States District Court for

the Northern District of California gave notice on January 3, 2011 that the Texas Action was 21 transferred, and would proceed under the new Case No. C-11-00004 EMC. [Docket No. 28] For the 22

Court's convenience, a copy of the Clerk's Notice of Transferred Case is attached hereto as Exhibit 23

B. This action and Case No. C-11-00004 EMC are thus both pending in this District. 24

4. Both this case and Case No. C-11-00004 involve the same parties (Calix and Wi-

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LAN), the same two patents (the '323 and '019 patents), at least some of the same accused products,

and substantially the same questions of law and questions of fact -- whether Calix has infringed the 28

'323 and '019 patents and whether those patents are invalid and/or unenforceable. Calix's other claims in this case are the same as its Counterclaims in Case No. C-11-00004. Accordingly, the 2 parties agree that the two cases should be consolidated for all purposes under the Case Number 3 assigned for this case, Case No. CV-09-6038 CRB, and should proceed according to the timeline set 4 forth in the parties' October 29, 2010 Joint Case Management Statement [Docket No. 78] and this 5

Court's November 5, 2010 Minute Order. [Docket No. 79]. 6 7

DATED: March 23, 2011 Respectfully submitted,

REED SMITH LLP

By illiam Overend1

: /s/ W

William Overend

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Attorneys for Plaintiff

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CALIX NETWORKS, INC.

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DATED: March 23, 2011. Respectfully submitted,

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MCKOOL SMITH, P.C.

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By: /s/ Michael G. McManus

Michael G. McManus

Attorneys for Defendant WI-LAN, INC.

Pursuant to Stipulation, IT IS SO ORDERED.

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IT IS ORDERED

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N Charles R. Breyer R

O Judge O

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H A filer hereby attests that concurrence in the filing of this document

1 Filer's Attestation: Pursuant to General Order No. 45, Section X(B) regarding signatures, the e-

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27signatories. N 28

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DIS ICT O

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20110325

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