Asustek Computer Inc. v. Technology Properties Limited et al

Filing 58

STIPULATION AND ORDER re 56 GRANTING Plaintiffs Leave to File Second Amended Complaint. Signed by Judge Jeremy Fogel on 9/19/08. (dlm, COURT STAFF) (Filed on 9/22/2008)

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

Robert E. Krebs, State Bar No. 57526 Christoper L. Ogden, State Bar No. 235517 Thelen LLP 225 West Santa Clara Street, Suite 1200 San Jose, CA 95113-1723 Tel. [phone] Fax [phone] Ronald F. Lopez, State Bar No. 11756 Sushila Chanana, State Bar No. 254100 Thelen LLP 101 Second Street, Suite 1800 San Francisco, CA 94105­3606 Tel. [phone] Fax. [phone] ATTORNEYS FOR DEFENDANTS TECHNOLOGY PROPERTIES LIMITED, MCM Portfolio LLC, and ALLIACENSE LIMITED Charles T. Hoge, State Bar No. 110696 Kirby Noonan Lance & Hoge 350 Tenth Avenue, Suite 1300 San Diego, CA 92101 Tel.: [phone] Fax: [phone] ATTORNEY FOR DEFENDANT PATRIOT SCIENTIFIC CORPORATION

William Sloan Coats, III, State Bar No. 94864 Mark R. Weinstein, State Bar No. 193043 Kyle D. Chen, State Bar No. 239501 White & Case LLP 3000 El Camino Real 5 Palo Alto Square, 9th Fl Palo Alto, CA 94306 Tel.: [phone] Fax: [phone] ATTORNEYS FOR PLAINTIFFS ASUSTeK COMPUTER INC., and ASUS COMPUTER INTERNATIONAL

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ASUSTEK COMPUTER INC., et al. Plaintiffs, vs. TECHNOLOGY PROPERTIES LIMITED, et al. Defendants. Case No. CV-08-884-JF ------------------STIPULATION AND [PROPOSED] ORDER GRANTING PLAINTIFFS LEAVE TO FILE SECOND AMENDED COMPLAINT

STIPULATION AND [PROPOSED] ORDER TO ALLOW PLAINTIFFS TO FILE SECOND AMENDED COMPLAINT Case No. CV-00884-JF

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 February 8, 2008, ASUSTeK Computer Inc. ("ASUSTeK") filed a complaint against Defendants Technology Properties Limited ("TPL"), Patriot Scientific Corporation ("Patriot"), and Alliacense Limited ("Alliacense") for declaratory judgment of patent noninfringement and invalidity of U.S. Patent Nos. 5,809,336; 5,784,584; and 5,440,749, which are part of the Moore Microprocessor Patent Portfolio ("MMP PortfolioTM"); and U.S. Patent Nos. 6,438,638; and 6,976,623, which are part of the CORE Flash PortfolioTM (MMP PortfolioTM and CORE Flash PortfolioTM patents , collectively, "Patents-in-Suit"); and WHEREAS, on February 13, 2008, ASUSTeK and ASUS Computer International ("ASUS International") (collectively "Plaintiffs") filed their First Amended Complaint against TPL, Patriot, Alliacense, and MCM Portfolio LLC ("MCM") (collectively "Defendants") for declaratory judgment of patent noninfringement and invalidity of the Patents-in-Suit; and WHEREAS, on April 25, 2008, in response to the First Amended Complaint, Defendants filed a motion to dismiss, or in the alternative to transfer the instant declaratory judgment action to the Eastern District of Texas, or to stay, which motion has been opposed by Plaintiffs and is currently set for hearing on September 19, 2008 ("Motion to Dismiss"); and WHEREAS, on April 25 and June 4, 2008, one or more Defendants filed complaints for patent infringement against ASUSTeK as to the Patents-in-Suit as well as U.S. Patent Nos. 5,530,890, which is part of the MMP PortfolioTM; and U.S. Patent Nos. 7,295,443 and 7,162,549, which are part of the CORE Flash PortfolioTM, in the Eastern District of Texas; WHEREAS, the parties have met and conferred, and if this Court retains jurisdiction over the present matter, Defendants have agreed to grant Plaintiffs leave to file a Second Amended Complaint in accordance with Federal Rule of Civil Procedure 15(a), in the form attached hereto as Exhibit A; and WHEREAS, the parties have met and conferred, and if this Court does not retain jurisdiction over the present matter, Defendants do not agree to grant Plaintiffs leave to file a Second Amended Complaint, as the issue will consequently be moot;

2
STIPULATION AND [PROPOSED] ORDER TO ALLOW PLAINTIFFS TO FILE SECOND AMENDED COMPLAINT Case No. CV-00884-JF

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

NOW, THEREFORE, BY AND THROUGH THEIR RESPECTIVE COUNSEL, THE PARTIES HEREBY STIPULATE AND RESPECTFULLY REQUEST THAT THE COURT ORDER, AS FOLLOWS: 1. Following the Court's order retaining jurisdiction over the present matter, the

Plaintiffs are hereby granted leave to file their Second Amended Complaint in accordance with Rule 15(a) in the form attached hereto as Exhibit A; 2. If the Court does not retain jurisdiction over the present matter, Plaintiffs will not

file a Second Amended Complaint, as the issue will consequently be moot; 3. This stipulation to allow Plaintiffs' leave to file their Second Amended Complaint

shall not in any way prejudice the Defendants' Motion to Dismiss, nor the Plaintiffs' opposition thereto. 4. The filing of Plaintiffs' Second Amended Complaint in accordance with this Order

shall not affect or alter any scheduling orders already in place at the time of its filing. Respectfully submitted, Dated: September 17, 2008 THELEN LLP By: /s/ Ronald F. Lopez /s/ Robert E. Krebs Attorneys for Defendants TECHNOLOGY PROPERTIES LIMITED, MCM Portfolio LLC, and ALLIACENSE LIMITED Dated: September 17, 2008 KIRBY NOONAN LANCE & HOGE By: /s/ Charles Hoge /s/ Charles T. Hoge Attorney for Defendant PATRIOT SCIENTIFIC CORPORATION

3
STIPULATION AND [PROPOSED] ORDER TO ALLOW PLAINTIFFS TO FILE SECOND AMENDED COMPLAINT Case No. CV-00884-JF

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: September 17, 2008

WHITE & CASE LLP By: /s/ Mark F. Lambert /s/ Mark F. Lambert Attorneys for Plaintiffs ASUSTeK COMPUTER INC., and ASUS COMPUTER INTERNATIONAL

PURSUANT TO THE STIPULATION OF THE PARTIES, IT IS SO ORDERED: 9/19/08 Dated: _____________________ ___________________________________ The Honorable Jeremy Fogel United States District Court Judge

STIPULATION AND [PROPOSED] ORDER TO ALLOW PLAINTIFFS TO FILE SECOND AMENDED COMPLAINT Case No. CV-00884-JF