Phoenix Technologies Ltd. v. DeviceVM et al

Filing 104

ORDER re 100 granting STIPULATION Regarding Leave to File Second Amended Complaint. Signed by Judge Claudia Wilken on 03/22/2010. (scc, COURT STAFF) (Filed on 3/22/2010)

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KARINEH KHACHATOURIAN (SBN 202634) [e-mail] BRYAN J. SINCLAIR (SBN 205885) [e-mail] MICHAEL R. HAVEN (SBN 208721) [e-mail] K&L GATES LLP 630 Hansen Way Palo Alto, CA 94304 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff and Counter-Defendant, PHOENIX TECHNOLOGIES, LTD. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

PHOENIX TECHNOLOGIES, LTD., a Delaware corporation, Plaintiff, vs. DEVICEVM, INC., a Delaware corporation, and BENEDICT CHONG, an individual, Defendants. DEVICEVM, Inc., a Delaware corporation, Counterclaimant, v. PHOENIX TECHNOLOGIES LTD., a Delaware corporation, Counterclaim-defendant.

Case No.: 4:09-CV-04697-CW (EDL) STIPULATION AND ORDER REGARDING LEAVE TO FILE SECOND AMENDED COMPLAINT Judge: Room: Honorable Claudia Wilken Courtroom 2, 4th Floor July 17, 2009 TBD

Complaint Filed: Trial Date:

Stipulation and [Proposed] Order

Case No. 4:09-CV-04697-CW (EDL)

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WHEREAS, on August 31, 2009, plaintiff Phoenix Technologies Ltd. ("Plaintiff") filed the First Amended Complaint in the Superior Court of the State of California in and for the County of Santa Clara; WHEREAS, on October 1, 2009, defendants DeviceVM, Inc. and Benedict Chong ("Defendants") timely removed the case to this Court pursuant to its federal question jurisdiction under 28 U.S.C. § 1441(a); WHEREAS, on December 21, 2009, Defendants filed their Answers and Affirmative Defenses to the First Amended Complaint, and on January 8, 2010, Defendant DeviceVM filed Amended Counterclaims against Plaintiff; WHEREAS, on February 4, 2010, Plaintiff filed a separate action in the United States District Court for the Northern District of California against Defendant DeviceVM, Inc. for the alleged infringement of U.S. Patent No. 6,519,659 styled Phoenix Technologies, LTD v. DeviceVM, Inc. Case No. 3:10-cv-00514-VRW (the "Phoenix Patent Infringement Case"); WHEREAS, the parties have met and conferred and have reached an agreement that will result in: (a) Phoenix being granted leave to further amend the First Amended Complaint in this case by filing a Second Amended Complaint which asserts one additional count for infringement of U.S. Patent No. 6,519,659; and (b) concurrent with the filing of the Second Amended Complaint in this case, Phoenix will file a Notice of Dismissal of Complaint Without Prejudice in the Phoenix Patent Infringement Case; NOW, THEREFORE, the undersigned parties hereby stipulate and agree, and respectfully request that the Court enter an order, as follows: 1. Phoenix is granted leave to file a Second Amended Complaint asserting one additional

claim for patent infringement within five (5) days of entry of this Order; 2. Defendants responsive pleading shall be due on or before March 19, 2010. O'MELVENY & MYERS LLP Dated: March 1, 2010 By: /s/ Stephen J. Akerley Stephen J. Akerley Attorneys for Defendants / Counterclaimants, DeviceVM, Inc. and Benedict Chong Stipulation and [Proposed] Order

IT IS SO STIPULATED.

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Case No. 4:09-CV-04697-CW (EDL)

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Stipulation and [Proposed] Order Dated: March 1, 2010

K&L GATES LLP By: /s/ Bryan J. Sinclair Bryan J. Sinclair

Attorneys for Plaintiff / Counter-Defendant, Phoenix Technologies, Ltd. I, Bryan J. Sinclair, am the ECF User whose ID and password are being used to file this Stipulation and [Proposed] Order Regarding Scheduling Matters. In compliance with General Order 45, X.B., I hereby attest that Bryan J. Sinclair has concurred in this filing. By: /s/ Bryan J. Sinclair _________________ Bryan J. Sinclair

ORDER PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: March 22, 2010

THE HONORABLE CLAUDIA WILKEN UNITED STATES DISTRICT COURT JUDGE

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Case No. 4:09-CV-04697-CW (EDL)