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Cepheid v. Roche Molecular Systems, Inc.

United States District Court, N.D. California, San Francisco Division

February 21, 2018

CEPHEID, Plaintiffs,
v.
ROCHE MOLECULAR SYSTEMS, INC. and F. HOFFMANN-LA ROCHE LTD., Defendants.

          Erik R. Puknys (SBN 190926) M. Paul Barker (SBN 243986) FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP Attorneys for Plaintiff Cepheid

          WILMER CUTLER PICKERING HALE AND DORR LLP Robert J. Gunther, Jr. Attorney for Defendant F. Hoffmann-La Roche Ltd.

          HUGHES HUBBARD & REED LLP Stephen S. Rabinowitz Attorney for Defendant Roche Molecular Systems, Inc.

          JOINT REQUEST TO CONTINUE CASE MANAGEMENT CONFERENCE; [PROPOSED] ORDER

         Plaintiff Cepheid filed this declaratory judgment action on August 21, 2012, seeking, inter alia, a declaration that the claims of U.S. Patent Nos. 5, 804, 375 (“the '375 patent”) and 6, 127, 155 (“the '155 patent”) are not infringed, are invalid, and are otherwise unenforceable. Defendant Roche Molecular Systems, Inc. moved to stay Counts I and II related to the '375 patent pending final resolution of a Swiss arbitration between the parties and moved to dismiss Counts III and IV related to the '155 patent for lack of subject matter jurisdiction. On January 17, 2013, the Court issued its Order Granting Defendant's Motion to Stay and Motion to Dismiss (“Order”). ECF No. 68. The Court stayed Counts I and II until further order of this Court and dismissed Counts III and IV for lack of subject matter jurisdiction. With respect to Counts I and II, the Court directed the parties to “update this Court within 30 days of the issuance of the Arbitral Tribunal's decision on the issue of jurisdiction.” Id. at 8.

         Pursuant to the Order, the parties notified the Court that on August 1, 2013, the International Chamber of Commerce (ICC) International Court of Arbitration issued a letter notifying the parties that the Arbitral Tribunal had rendered a Partial Award on arbitral jurisdiction, dated July 30, 2013. ECF No. 77. The Partial Award included an order concerning jurisdiction, in which the Arbitral Tribunal concluded that it has jurisdiction to decide on the relief sought by the claimants (i.e., Roche Molecular Systems, Inc. and F. Hoffmann-La Roche Ltd). Cepheid appealed the Arbitral Tribunal's jurisdictional decision. Id. On February 28, 2014 the Swiss Federal Court dismissed Cepheid's appeal in its entirety. On April 20, 2016 the Arbitral Tribunal issued a second Partial Award on liability issues. The Arbitration is proceeding in accordance with the schedule set by the Arbitral Tribunal.

         Since the Court issued its January 2013 Order, the parties have jointly filed several stipulations to continue the Initial Case Management Conference and the Court has entered those stipulations. Specifically, on March 11, 2013, the Court reset the Case Management Conference from March 14, 2013 to June 20, 2013 (ECF Nos. 72, 73); on June 7, 2013 the Court reset the Case Management Conference from June 20, 2013 to October 10, 2013 (ECF Nos. 74, 75); on September 23, 2013 the Court reset the Case Management Conference from October 10, 2013 to March 6, 2014 (ECF Nos. 77, 78); on February 26, 2014 the Court reset the Case Management Conference from March 6, 2014 to November 13, 2014 (ECF Nos. 81, 82); on November 7, 2014 the Court reset the Case Management Conference from November 13, 2014 to March 26, 2015 (ECF Nos. 84, 85); on March 13, 2015 the Court reset the Case Management Conference from March 26, 2015 to September 24, 2015 (ECF Nos. 86, 87), ), which was reset sua sponte to September 23, 2015 (ECF No. 88); on September 16, 2015, the Court reset the Case Management Conference from September 23, 2015 to April 21, 2016 (ECF Nos. 89, 90), on April 14, 2016, the Court reset the Case Management Conference from April 21, 2016 to October 27, 2016 (ECF Nos. 92, 93), which the Court then rescheduled sua sponte to November 8, 2016 (ECF No. 94); on November 3, 2016 the Court reset the Case Management Conference from November 8, 2016 to June 15, 2017 (ECF Nos. 96, 97); on June 8, 2017 the Court reset the Case Management Conference from June 15, 2017 to November 16, 2017 (ECF Nos. 99, 100, 101); and on November 9, 2017 the Court reset the Case Management Conference from November 16, 2017 to March 1, 2018 (ECF Nos. 102, 103).

         As of this time, the parties continue to believe that it is not appropriate to lift the Court's stay. Specifically, although the Arbitral Tribunal has issued its Final Award, the parties are in discussions that potentially can resolve their dispute.

         Accordingly, the parties respectfully request that the Initial Case Management Conference, currently scheduled for March 1, 2018, be continued until June 7, 2018, or any other date that the Court deems appropriate. The parties will contact the Court before then if anything of substance occurs in the arbitration that may affect the status of this case.

         By his signature below, Counsel for Plaintiff certifies that Counsel for Defendants concur in the filing of this notice.

         [PROPOSED] ORDER

         Pursuant to the stipulation of the parties and good cause appearing therefore;

         the CMC is reset from 3/1/18 to 6/7/18 at 9:30 a.m. A joint CMC statement shall be filed by 5/31/18.

         IT ...


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