Fortinet, Inc. v. Sophos, Inc. et al

Filing 89

STIPULATION AND ORDER re 85 MOTION for Leave to File Second Amended Answer and Counterclaims by Sophos Inc. and Sophos Ltd (Unopposed); Joint Stipulation and Proposed Order to Withdraw Sophos' Eighth Affirmative Defense and Eighth and Ninth Counterclaims of Inequitable C filed by Sophos Ltd., Sophos, Inc. Signed by Judge Edward M. Chen on 10/10/14. (bpf, COURT STAFF) (Filed on 10/10/2014)

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JOHN M. NEUKOM (CA Bar No. 275887)
[e-mail]
ANDREW H. HOLMES (CA Bar No. 260475)
[e-mail]
ALICIA VEGLIA (CA Bar No. 291 070)
[e-mail]
QUrnNEMANUELURQUHART&
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]

SEAN C. CUNNINGHAM, BarNo. 174931
[e-mail]
KATHRYN RILEY GRASSO, Bar No.
211187
[e-mail]
DAVID R. KNUDSON, Bar No. 265461
[e-mail]
DLA PIPER LLP (US)
401 B Street, Suite 1700
San Diego, CA 92101-4297
Telephone:
619.699.2700
Facsimile:
619.699.270 I

Attorneys for PlaintiffFORTINET, INC .

Attorneys for Defendant and Counterclaim
Plaintiff SOPHOS INC., Counterclaim
PlaintiffSOPHOS LTD. and Defendants
MICHAEL VALENTINE and JASON
CLARK (limited appearance)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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CASE NO. 3:13-cv-05831-EMC

FORTINET, INC., a corporation,
Plaintiff,

UNOPPOSED MOTION AND
[PROPOSED] ORDER FOR LEAVE TO
FILE SECOND AMENDED ANSWER
AND COUNTERCLAIMS BY SOPHOS
INC. AND SOPHOS LTD;

v.

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SOPHOS INC., a corporation, MICHAEL
VALENTINE, an individual, and JASON
CLARK, an individual,
Defendants.

JOINT STIPULATION AND
[PROPOSED] ORDER TO
WITHDRAW SOPHOS' EIGHTH
AFFIRMATIVE DEFENSE AND
EIGHTH AND NINTH
COUNTERCLAIMS OF
INEQUITABLE CONDUCT

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SOPHOS INC. and SOPHOS LTD.,
corporations,
Counterclaim Plaintiffs,

v.
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FORTINET, INC., a corporation,
Counterclaim Defendant.

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DLA P IPER LLP (US)
SA.N DI EGO

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CASE NO. 3:13-CV-05831-EMC

Defendant and Counterclaim Plaintiff Sophos Inc. and Counterclaim Plaintiff Sophos
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Ltd. ("collectively "Sophos") and Plaintiff and Counterclaim Defendant Forti net, Inc.

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("Fortinet") hereby submit this Unopposed Motion for Leave to File Second Amended Answer

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And Counterclaims by Sophos. Counsel for Sophos and Fortinet have conferred and Fortinet has

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agreed not to oppose this Motion for Leave. Sophos ' proposed Second Amended Answer seeks

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to withdraw the Eighth Defense ofunenforceability of U.S. Patent Nos. 8,069,487 ("the ' 487

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patent") and 8,195,938 ("the '938 patent") due to inequitable conduct and the Eighth and Ninth

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Counterclaims ofunenforceability ofthe '487 and ' 938 patents due to inequitable conduct. A

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copy ofSophos ' s proposed Second Amended Answer is attached hereto as Exhibit 1. A mark-up

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version, showing the changes between Sophos' s First Amended Answer and Counterclaims and

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Sophos's proposed Second Amended Answer and Counterclaims is attached hereto as Exhibit 2.
Pursuant to~ 5 of the Amended Joint Case Management Statement (Doc. No. 59), good

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cause for amendment exists because withdrawal of these inequitable conduct allegations will

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conserve the time and resources ofthis Court and of the Parties.
Additionally, by and through their respective undersigned counsel, Sophos and Fortinet

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hereby agree and stipulate as follows:
IT IS HEREBY STIPULATED AND AGREED that Sophos withdraws its Eighth

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Defense ofunenforceability ofthe ' 487 and ' 938 patents due to inequitable conduct and the

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Eighth and Ninth Counterclaims ofunenforceability ofthe ' 487 and '938 patents due to

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inequitable conduct, and Sophos is barred from pursuing inequitable conduct theories against the

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' 487 and '938 patents to the same extent Sophos would be barred if this Court granted the

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proposed order (Doc. No. 72-1) submitted by Fortinet in the pending Motion to Dismiss and

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Strike Sophos ' Counterclaims and Affirmative Defense (Doc. No . 72). Accordingly, the parties

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also submit an additional proposed Order denying Fortinet' s pending Motion to Dismiss as moot.

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IIIII

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DLA PIPER LLP (US)
SAN DI EGO

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CASE NO. 3:13-CV-05831-EMC

SIGNATURE ATTESTATION
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Pursuant to Local Rule 5.1 (i)(3), I attest under penalty of perjury that concurrence in the

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filing of this document has been obtained from John Neukom.

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Is/ Sean C. Cunningham
Sean C. Cunningham

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DLA PIPER LLP (US)
SAN OH!CO

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CASE NO. 3:13-CV-05831-EMC

PROPOSED ORDER

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Before the Court is the Parties' Unopposed Motion For Leave To File Second Amended
Answer And Counterclaims By Sophos Inc. And Sophos Ltd.

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Accordingly, having reviewed the documents submitted, the record and applicable law,

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and good cause appearing, IT IS HEREBY ORDERED that the Unopposed Motion For Leave is

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GRANTED.

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IT IS SO ORDERED

10/10/14

UNIT
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Dated:

S DISTRICT
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IT IS S

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FO

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Hon. Edward M. Chen
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United States DistrictDEREJudge
OR Court

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DLA PIPER LLP (US)
SAN DI EGO

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CASE NO. 3:13-CV-05831-EMC

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PROPOSED ORDER

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Pursuant to the above Stipulation and Agreement concerning Sophos's Eighth Affirmative

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Defense and Eighth and Ninth Counterclaims of Inequitable Conduct the Motion to Dismiss and

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Strike Sophos' Counterclaims and Affirmative Defense filed by Fortinet (Doc. No. 72) is hereby

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DENIED AS MOOT.

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IT IS SO ORDERED.

10/10/14

UNIT
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Dated:

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Hon. Edward M. Chen
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United States District Court Judge
ORDER

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DLA PIPER LLP (US)
SAN DIEGO

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CASENO. 3:13-CV-05831-EMC