Vnus Medical Technologies Inc. v. Biolitec, Inc. et al

Filing 348

ORDER REGARDING ADDENDA TO STIPULATIONS REFLECTED IN JOINT PRETRIAL STATEMENT. Signed by Judge Maxine M. Chesney on September 29, 2010. (mmclc1, COURT STAFF) (Filed on 9/29/2010)

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Vnus Medical Technologies Inc. v. Biolitec, Inc. et al Doc. 348 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Matthew B. Lehr (Bar No. 213139) Diem-Suong T. Nguyen (Bar No. 237557) David J. Lisson (Bar No. 250994) Chung G. Suh (Bar No. 244889) Jeremy Brodsky (Bar No. 257674) DAVIS POLK & WARDWELL LLP 1600 El Camino Real Menlo Park, California 94025 Telephone: (650) 752-2000 Facsimile: (650) 752-2111 Attorneys for Plaintiff Tyco Healthcare Group LP d/b/a VNUS Medical Technologies UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION TYCO HEALTHCARE GROUP LP d/b/a VNUS MEDICAL TECHNOLOGIES, ) ) ) Plaintiff, ) ) v. ) ) BIOLITEC, INC. and NEW STAR LASERS, ) INC. d/b/a COOLTOUCH, INC., ) ) Defendants. ) ) ) ) ) TYCO HEALTHCARE GROUP LP d/b/a VNUS MEDICAL TECHNOLOGIES, Plaintiff, v. TOTAL VEIN SOLUTIONS, LLC d/b/a TOTAL VEIN SYSTEMS, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) LEAD CASE NO. C08-03129 MMC CASE NO. C08-03129 MMC STIPULATION AND [PROPOSED] ORDER REGARDING ADDENDA TO STIPULATIONS REFLECTED IN JOINT PRETRIAL STATEMENT (D.I. 286) Judge: Hon. Maxine M. Chesney CASE NO. C08-04234 MMC (consolidated with C08-03129 MMC) 26 27 28 STIPULATION AND [PROPOSED] ORDER RE: ADDENDA TO STIPULATIONS IN JOINT PRETRIAL STATEMENT ­ CASE NOS. C08-03129 MMC & C08-04234 MMC Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, on August 30, 2010 pursuant to this Court's Pretrial Preparation Order, the parties filed a Joint Pretrial Statement (D.I. 286) that set forth the parties' stipulations regarding pretrial preparation and the conduct of trial and stipulations of fact; WHEREAS since the filing of the Joint Pretrial Statement, the parties have reached the following additional stipulations: 1. Defendants agree not to reference, or present evidence or ask questions regarding, statements by PTO Examiner Lee S. Cohen made in connection with the prosecution of U.S. Patent Application No. 10/738,488, including (1) in the course of Defendants' witness' testimony, and (2) when cross-examining VNUS's witnesses; 2. The parties agree not to reference, or present evidence or ask questions regarding, any alleged independent or prior invention or copying of the claimed methods of the patents-in-suit by Dr. Robert Min or Dr. Luis Navarro, including (1) in the course of the party's experts' testimony, and (2) when cross-examining another party's expert; 3. VNUS agrees not to reference, or present evidence or ask questions regarding, benefits of tumescent anesthesia solely for insulation and/or anesthesia (and without compression) to show secondary indicia of nonobviousness or copying; 4. Defendants agree to make available at trial Tyrell Schiek, Brian Foley, and David Hennings for VNUS to call during its case in chief, and that no subpoenas will be required as to such witnesses; 5. biolitec believes that it had knowledge of VNUS's Closure procedure as of November 2001; 6. SAFONOV, "Multimodality Treatment of Varicosity with Electrocoagulation Medical Guidelines," May 5, 1974, Moscow (starting production number BIO006428) is authentic and constitutes a printed publication within the meaning of 35 U.S.C. § 102(b) published more than one year prior to September 11, 1997; however, VNUS reserves all rights to contest whether such reference invalidates any of the patents-in-suit under 35 U.S.C. §§ 102 and/or 103; and 1 STIPULATION AND [PROPOSED] ORDER RE: ADDENDA TO STIPULATIONS IN JOINT PRETRIAL STATEMENT ­ CASE NOS. C08-03129 MMC & C08-04234 MMC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. The translation accompanying the foregoing publication and produced therewith is adequate to be admitted into evidence; however, VNUS reserves all rights to contest the accuracy of the translation. 8. The parties agree that a party may offer at trial any exhibit from the opposing side's exhibit list, subject to whatever objections are made at the time of proffer. 9. To assist all parties in scheduling for trial, the parties agree to exchange, by 5:00 pm Eastern time on September 28, 2010, a good-faith list of the witnesses they intend to call in their respective cases-in-chief at trial, the order in which they intend to call those witnesses, and a goodfaith estimate of the length of each witness's direct testimony. The parties further agree to apprise one another of any changes to their witness lists, order and time estimates by 5:00 pm Eastern time on October 4, 2010 and October 11, 2010, if they in good faith expect any changes to the lists, order or time estimates they have previously provided. 10. The parties agree that if they elect to call witnesses from their "May Call" lists to testify live as part of their respective cases-in-chief, the party calling the witness will disclose such intention no later than 5:00 pm California time three days before the witness is called to the witness stand. 11. The parties agree that, to the extent witnesses are called in (or back) for rebuttal or impeachment, the party calling the witness will disclose such intention no later than 5:00 pm California time the day before the witness is called to the witness stand, if sufficient time exists for such notice to be provided. NOW, THEREFORE, the parties request that the stipulations set forth in paragraphs 1-4and 8-11 above be entered as addenda to Section III of the Joint Pretrial Statement (Stipulations Regarding Pretrial Preparation and Conduct of Trial) and that the stipulations set forth in paragraphs 5-7 above be entered as addenda to Section IV.A. of the Joint Pretrial Statement (Stipulated Facts). 2 STIPULATION AND [PROPOSED] ORDER RE: ADDENDA TO STIPULATIONS IN JOINT PRETRIAL STATEMENT ­ CASE NOS. C08-03129 MMC & C08-04234 MMC 1 2 3 4 5 6 7 8 9 Dated: September 27, 2010 DAVIS POLK & WARDWELL LLP /s/ David J. Lisson Matthew B. Lehr (Bar No. 213139) Diem-Suong T. Nguyen (Bar No. 237557) 1600 El Camino Real Menlo Park, CA 94025 Tel: (650) 752-2000 Fax: (650) 752-2111 matthew.lehr@davispolk.com suong.nguyen@davispolk.com Attorneys for Plaintiff Tyco Healthcare Group LP d/b/a VNUS Medical Technologies WOLF, GREENFIELD & SACKS, P.C. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 STIPULATION AND [PROPOSED] ORDER RE: ADDENDA TO STIPULATIONS IN JOINT PRETRIAL STATEMENT ­ CASE NOS. C08-03129 MMC & C08-04234 MMC /s/ Michael N. Rader Michael N. Rader (admitted pro hac vice) Charles T. Steenburg (admitted pro hac vice) 600 Atlantic Avenue Boston, MA 02210 Tel: (617) 646-8000 Fax: (617) 646-8646 mrader@wolfgreenfield.com csteenburg@wolfgreenfield.com Attorneys for Defendant biolitec, Inc. ORRICK, HERRINGTON & SUTCLIFFE LLP /s/ James W. Geriak James W. Geriak (Bar No. 32871) Allan W. Jansen (Bar No. 81992) 4 Park Plaza, Suite 1600 Irvine, CA 92614-2558 Tel: (949) 567-6700 Fax: (949) 567-6710 jgeriak@orrick.com ajansen@orrick.com Attorneys for Defendant New Star Lasers, Inc. d/b/a CoolTouch, Inc. 1 2 3 4 5 6 7 8 9 10 BUCHE & ASSOCIATES, P.C. /s/ John K. Buche John Karl Buche (Bar No. 239477) Sean M. Sullivan (Bar No. 254372) 875 Prospect, Suite 305 La Jolla, CA 92037 Tel: (858) 812-2840 Fax: (858) 459-9120 jbuche@westerniplaw.com sean@westerniplaw.com Attorneys for Defendant Total Vein Solutions, LLC d/b/a Total Vein Systems I hereby attest that I have on file written (or e-mail) permission to sign this stipulation from 11 all parties whose signatures are indicated by a "conformed" signature (/s/) within this e-filed 12 document. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 STIPULATION AND [PROPOSED] ORDER RE: ADDENDA TO STIPULATIONS IN JOINT PRETRIAL STATEMENT ­ CASE NOS. C08-03129 MMC & C08-04234 MMC Dated: September 27, 2010 /s/ David J. Lisson David J. Lisson PURSUANT TO STIPULATION, IT IS SO ORDERED. Dated: ______________, 2010 September 29 HON. MAXINE M. CHESNEY, U.S.D.J.

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