Baxter Healthcare Corporation et al v. Fresenius Medical Care Holdings Inc. et al

Filing 399

STIPULATION AND ORDER re: Removal of Liberty Cycler Functionality Relating to, and Dismissal of, U.S. Patent No. 5,431,626 398 Stipulation, filed by Fresenius Medical Care Holdings Inc., Baxter International Inc., Baxter Healthcare SA, Fresenius USA Inc., Baxter Healthcare Corporation, Deka Products Limited Partnership. Signed by Judge Phyllis J. Hamilton on 3/18/2010. (ig, COURT STAFF) (Filed on 3/18/2010)

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David K. Callahan, P.C. (IL 6206671), [e-mail] KIRKLAND & ELLIS LLP 300 N. LaSalle Street Chicago, Illinois 60654 Telephone: [phone] Facsimile: 312-862-2200 Attorney For Plaintiffs and Counter-defendants BAXTER HEALTHCARE CORPORATION, BAXTER INTERNATIONAL INC., and BAXTER HEALTHCARE SA Maureen K. Toohey (SBN 196401), [e-mail] TOOHEY LAW GROUP, LLC One Financial Center, 15th Floor Boston, Massachusetts 02111 Telephone: [phone] Attorney for Plaintiff and Counter-defendant DEKA PRODUCTS LIMITED PARTNERSHIP Juanita R. Brooks (SBN 75934), [e-mail] FISH & RICHARDSON P.C. 12390 El Camino Real San Diego, California 92130 Telephone: [phone] Facsimile: [phone] Attorney for Defendants and Counter-claimants FRESENIUS MEDICAL CARE HOLDINGS, INC. AND FRESENIUS USA, INC. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION BAXTER HEALTHCARE CORPORATION, BAXTER INTERNATIONAL INC., BAXTER HEALTHCARE SA, AND DEKA LIMITED PARTNERSHIP, Plaintiffs and Counter-defendants, vs. FRESENIUS MEDICAL CARE HOLDINGS, INC., d/b/a FRESENIUS MEDICAL CARE NORTH AMERICA, and FRESENIUS USA, INC., Defendants and Counter-claimants.

Case No. C 07-01359 PJH (JL) STIPULATION OF REMOVAL OF LIBERTY CYCLER FUNCTIONALITY RELATING TO, AND DISMISSAL OF, U.S. PATENT NO. 5,431,626

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

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WHEREAS, the Court has withdrawn its construction of the claim limitation "pressure conveying element" as recited in U.S. Patent No. 5,431,626 ("the '626 Patent") and has invited further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; WHEREAS, Plaintiffs seek to dismiss their allegations that any version of the LibertyTM 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; WHEREAS, during the development of the LibertyTM Cycler, Fresenius engineers 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; WHEREAS, during the development of the LibertyTM Cycler, Fresenius engineers considered and rejected using an inflatable air bladder behind the pump face in favor of placing an inflatable air bladder in the door; WHEREAS, separately and apart from the foregoing recitals, the parties agree to dismiss all claims and counterclaims with respect to claims 34, 36-38, 41, 44, and 45 of U.S. Patent No. 5,431,626; 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.
STIPULATION OF REMOVAL OF LIBERTY CYCLER FUNCTIONALITY RELATING TO, AND DISMISSAL OF U.S. PATENT NO. 5,431,626

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Case No. C 07-01359 PJH (JL)

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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.
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IT IS SO ORDERED.

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3/18/2010 Dated: ________________________

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

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Case No. C 07-01359 PJH (JL)

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By: ___________________________________ il HONORABLE PHYLLIS J.ton s J. Ham HAMILTON e Phylli dgDistrict Judge Ju United States
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