Boston Scientific Corporation et al v. Cordis Corporation

Filing 1355

STIPULATION AND ORDER to Shorten Time for Briefing and to Set Hearings for Plaintiffs' Motions to Join the Regents of the University of California as Nominal Plaintiff and to Strike Defenses based on 35 U.S.C. § 112 re 1342 Stipulation Motion Hearing set for 2/24/2009 09:00 PM in Courtroom 8, 4th Floor, San Jose. Signed by Judge James Ware on 2/19/2009. (ecg, COURT STAFF) (Filed on 2/20/2009)

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N NORTHERN DISTRICT OF CALIFORNIA D

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SAN JOSE DIVISION BOSTON SCIENTIFIC CORP. and TARGET THERAPEUTICS, INC., Plaintiffs, v. CORDIS CORPORATION, Defendant.

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Case No.: C02-1474-JW STIPULATION AND [PROPOSED] ORDER TO SHORTEN TIME FOR BRIEFING AND TO SET HEARINGS FOR PLAINTIFFS' MOTIONS TO JOIN THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AS NOMINAL PLAINTIFF AND TO STRIKE DEFENSES BASED ON 35 U.S.C. § 112

Pursuant to Civil Local Rules 6-1, 6-2 and 7-12, Plaintiffs Boston Scientific Corporation ("BSC") and Target Therapeutics, Inc. ("Target") (together "Plaintiffs"), hereby request an order shortening time for briefing and setting for hearing on February 24, 2009 Plaintiffs' motion to join the Regents of the University of California ("The Regents") as nominal plaintiff and motion to strike defendant Cordis Corporation's ("Cordis") defenses based on 35 U.S.C. § 112. Plaintiffs seek such relief because adherence to the briefing schedule established by the Civil Local Rules would deny Plaintiffs any relief and deprive the Court an opportunity to hear the issues presented by the motions prior to trial. On February 9, 2009, the Court set the trial schedule to commence with jury selection on March 3, 2009, with a hearing regarding additional issues to be resolved prior to trial on February 24, 2009 (D.I. 1338, 1339). This limited time frame would not allow the parties to brief the joinder and Section 112 issues under the minimum time periods proscribed by the Civil Local Rules.
STIPULATION AND [PROPOSED] ORDER TO SHORTEN TIME FOR BRIEFING AND TO SET HEARINGS FOR PLAINTIFFS' MOTIONS TO JOIN THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AS NOMINAL PLAINTIFF AND TO STRIKE DEFENSES BASED ON 35 U.S.C. § 112­ CASE NO. C 02 1474 JW

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Therefore, Plaintiffs respectfully request the following stipulated expedited briefing schedule for their motions to join The Regents as a nominal plaintiff and to strike Cordis's defenses based on 35 U.S.C. § 112: (1) (2) Plaintiffs will file and serve their motions no later than Friday, February 13, 2009. Cordis will file and serve its opposition, if any, no later than one calendar week from

service of Plaintiffs' motion to which the opposition responds, or Friday, February 20, 2009, whichever is later. (3) 2009. Plaintiffs further request that these motions be set for the hearing scheduled for 9:00 a.m., February 24, 2009. Counsel for Plaintiffs has conferred with counsel for Cordis. Counsel for Cordis believes that any motion to strike Cordis' Section 112 defenses is untimely and that no such motion should be filed absent leave of Court.1 Additionally, Cordis intends to oppose Plaintiffs' motion to join the Regents and, assuming leave to file a motion to strike is granted, intends to oppose that motion as well. To the extent the Court allows Plaintiffs to file the motions referred to herein, counsel for Cordis will not oppose the proposed schedule set forth herein. See Declaration of Robert D. Carroll ¶ 5. CONCLUSION For all the foregoing reasons, and pursuant to stipulation, Plaintiffs respectfully requests an order shortening time for briefing as set forth in the accompanying proposed order and setting for hearing on February 24, 2009 plaintiffs' motion to join The Regents as nominal plaintiff and motion to strike Cordis's defenses based on 35 U.S.C. § 112. Plaintiffs will file and serve their replies, if any, no later than Monday, February 23,

It is BSC and Target's position that a motion to strike defenses based on 35 U.S.C. § 112 is timely and that no preliminary motion seeking leave of court is necessary.

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STIPULATION AND [PROPOSED] ORDER TO SHORTEN TIME FOR BRIEFING AND SET HEARINGS FOR PLAINTIFFS' MOTIONS TO JOIN THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AS NOMINAL PLAINTIFF AND TO STRIKE DEFENSES BASED ON 35 U.S.C. § 112­ CASE NO. C 02 1474 JW LIBA/1969177.3

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Dated: February 12, 2009

By: /s/Michael G. Strapp Paul F. Ware Jr. (Pro Hac Vice) J. Anthony Downs (Pro Hac Vice) Roland H. Schwillinski (Pro Hac Vice) Michael G. Strapp (Pro Hac Vice) GOODWIN PROCTER LLP Exchange Place Boston, Massachusetts 02109-2881 Tel: [phone] Fax: [phone] [e-mail] [e-mail] [e-mail] [e-mail] Michael F. Kelleher FOLGER LEVIN & KAHN LLP Embarcadero Center West 275 Battery Street, 23rd Floor San Francisco, CA 94111 Attorneys for Plaintiffs BOSTON SCIENTIFIC CORP. and TARGET THERAPEUTICS, INC.

Dated: February 12, 2009

By: /s/ Matthew T. Powers Matthew T. Powers (SBN 124493) SIDLEY AUSTIN LLP 555 California Street, Suite 2000 San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Hugh A. Abrams (Pro Hac Vice) Lisa A. Schneider (Pro Hac Vice) Stephanie P. Koh (Pro Hac Vice) SIDLEY AUSTIN LLP 10 S. Dearborn Street Chicago, IL 60603 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant CORDIS NEUROVASCULAR, INC.

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STIPULATION AND [PROPOSED] ORDER TO SHORTEN TIME FOR BRIEFING AND SET HEARINGS FOR PLAINTIFFS' MOTIONS TO JOIN THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AS NOMINAL PLAINTIFF AND TO STRIKE DEFENSES BASED ON 35 U.S.C. § 112­ CASE NO. C 02 1474 JW LIBA/1969177.3

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 Dated: February 12, 2009

ATTESTATION OF SIGNATURE (N.D. Cal. General Order No. 45) Pursuant to N.D. Cal. General Order No. 45 § X(B), I hereby attest under penalty of perjury that concurrence in the filing of this document has been obtained by all the signatories. By: /s/Michael G. Strapp Michael G. Strapp (Pro Hac Vice) GOODWIN PROCTER LLP Exchange Place Boston, Massachusetts 02109-2881 Tel: [phone] Fax: [phone] [e-mail] Attorneys for Plaintiffs BOSTON SCIENTIFIC CORP. and TARGET THERAPEUTICS, INC.

STIPULATION AND [PROPOSED] ORDER TO SHORTEN TIME FOR BRIEFING AND TO SET HEARINGS FOR PLAINTIFFS' MOTIONS TO JOIN THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AS NOMINAL PLAINTIFF AND TO STRIKE DEFENSES BASED ON 35 U.S.C. § 112­ CASE NO. C 02 1474 JW

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 February 19, 2009 Dated: ___________, 2009 vs. CORDIS CORPORATION,

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION BOSTON SCIENTIFIC CORP. and TARGET THERAPEUTICS, INC., Plaintiffs,

Case No.: C02-1474-JW [PROPOSED] ORDER GRANTING STIPULATED MOTION TO SHORTEN TIME FOR HEARING ON PLAINTIFFS' MOTIONS

Defendants.

Pursuant to stipulation, IT IS SO ORDERED that plaintiffs' motion to join the Regents of the University of California ("The Regents") as nominal plaintiff and motion to strike defendant Cordis Corporation's ("Cordis") defenses based on 35 U.S.C. § 112 are set for expedited briefing as follows: (1) (2) Plaintiffs shall file and serve their motions no later than Friday, February 13, 2009. Cordis will file and serve its oppositions, if any, no later than one calendar week from

service of Plaintiffs' motion to which the opposition responds, or Friday, February 20, 2009, whichever is later. (3) Plaintiffs shall file their replies, if any, no later than Monday, February 23, 2009.

Pursuant to stipulation, IT IS FURTHER ORDERED THAT, the motions will be heard at the hearing scheduled for 9:00 a.m., February 24, 2009. ______________________________________ The Honorable James Ware United States District Judge Northern District of California

STIPULATION AND [PROPOSED] ORDER TO SHORTEN TIME FOR BRIEFING AND TO SET HEARINGS FOR PLAINTIFFS' MOTIONS TO JOIN THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AS NOMINAL PLAINTIFF AND TO STRIKE DEFENSES BASED ON 35 U.S.C. § 112­ CASE NO. C 02 1474 JW