Synthes (USA) v. Spinal Kinetics Inc.

Filing 244

JOINT STIPULATION AND ORDER 230 Concerning Briefing Schedule and Hearing Dates: Motion Hearing set for 7/22/2011 09:00 AM in Courtroom 6, 4th Floor, San Jose before Hon. Ronald M. Whyte. Signed by Judge Ronald M. Whyte on 6/23/11. (jg, COURT STAFF) (Filed on 6/23/2011)

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James W. Geriak (State Bar No. 32,871)
[e-mail]
Allan W. Jansen (State Bar No. 81,992)
[e-mail]
DICKSTEIN SHAPIRO LLP
2030 Main Street, Suite 1300
Irvine, CA 92614-7200
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
SPINAL KINETICS, INC.

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Jeffrey M. Olson (State Bar No. 104,074)
[e-mail]
Paul H. Meier (State Bar No. 115,999)
[e-mail]
Samuel N. Tiu (State Bar No. 216,291)
[e-mail]
Matthew S. Jorgenson (State Bar No. 229,131)
[e-mail]
SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000
Los Angeles, CA 90013
Telephone: [phone]
Facsimile: [phone]

*E-FILED - 6/23/11*

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Attorneys for Plaintiffs
SYNTHES USA, LLC (f/k/a SYNTHES (U.S.A.);
SYNTHES USA SALES, LLC; and SYNTHES, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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SYNTHES USA, LLC (f/k/a SYNTHES
(U.S.A.)); SYNTHES USA SALES, LLC; and
SYNTHES, INC.,

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Plaintiffs,

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v.

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SPINAL KINETICS, INC.,
Defendant.

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AND RELATED COUNTERCLAIMS.

CASE NO. 5:09-CV-01201 RMW
JOINT STIPULATION AND
[] ORDER CONCERNING
BRIEFING SCHEDULE AND
HEARING DATES (DOCKET NOS.
206, 216, 218, 224-225 & 228)
Current Dates: July 8, 2011 and
July 22, 2011
Proposed Date: July 22, 2011
Time:
9:00 a.m.
Courtroom:
6
Judge:
Hon. Ronald M. Whyte

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JOINT STIPULATION AND [ ORDER
CONCERNING BRIEFING SCHEDULE AND HEARING DATES

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On June 10, 2011, the parties filed five motions in connection with the above-captioned

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action. These motions are entitled: (1) Spinal Kinetics, Inc.'s Motion for Summary Adjudication

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Precluding Plaintiffs Synthes, Inc. and Synthes USA Sales, LLC from Recovering Any Damages

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and Precluding Plaintiff Synthes USA, LLC from Recovering Any Lost Profit Damages

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(Administrative Motion to File Under Seal at Docket No. 216); (2) Spinal Kinetics, Inc.'s Motion

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that Each of Claims 29-31 of U.S. Patent No. 7,429,270 is Not Entitled to the Effective Filing

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Date of the PCT Application Under 35 U.S.C. §120 (Docket No. 218); (3) Plaintiffs' Motion for

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Partial Summary Judgment Dismissing Spinal Kinetics' Anticipation and Obviousness Defenses

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(Docket No. 224); (4) Plaintiffs' Motion for Partial Summary Judgment Dismissing Invalidity

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Defenses Based on 35 U.S.C. §112 (Written Description, Enablement, Indefiniteness, Best Mode)

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and §101 (Utility) (Docket No. 225); and (5) Plaintiffs' Motion to Strike or Otherwise Exclude

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Spinal Kinetics, Inc.'s Experts, George Strong, Nicholas Koske, and Thomas Smegal on Certain

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Issues (Administrative Motion to File Under Seal at Docket No. 228). All five motions are

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currently set to be heard by this Court at 9:00 a.m. on July 22, 2011.

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Given the recent amendments to Local Rule 7-3, the Oppositions to these five motions are

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currently due by June 24, 2011 and the Replies are currently due by July 1, 2011. However, given

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the volume of material contained therein, the parties respectfully request that the Court approve a

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brief continuance of these dates – so that the Oppositions will now be due by June 29, 2011 and

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the Replies will now be due by July 8, 2011, which is 14 days prior to the hearing. The parties'

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intent in making this proposal is that this brief continuance not impact the July 22, 2011 hearing

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date.

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In addition, by the Court's own motion (Docket No. 215), the hearing date for Spinal

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Kinetics, Inc.'s Motion to Dismiss Plaintiffs Synthes, Inc. and Synthes USA Sales, LLC for Lack

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of Standing (Docket No. 206, filed May 6, 2011) was recently continued to July 8, 2011. Shortly

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after this date was continued, Spinal Kinetics' counsel informed Synthes' counsel that Spinal

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Kinetics' counsel is unavailable on July 8, 2011. Further, because this motion raises many of the

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same issues as Spinal Kinetics, Inc.'s Motion for Summary Adjudication Precluding Plaintiffs

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Synthes, Inc. and Synthes USA Sales, LLC from Recovering Any Damages and Precluding
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JOINT STIPULATION AND [] ORDER
CONCERNING BRIEFING SCHEDULE AND HEARING DATES

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Plaintiff Synthes USA, LLC from Recovering Any Lost Profit Damages and the preparation of the

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briefing relating to these motions will substantially overlap, the parties also respectfully request:

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(1) that the hearing on Spinal Kinetics, Inc.'s Motion to Dismiss Plaintiffs Synthes, Inc. and

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Synthes USA Sales, LLC for Lack of Standing be continued to July 22, 2011; and (2) that the

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briefing schedule be adjusted to conform with the schedule proposed for the five other motions set

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to be heard the same day.

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IT IS THEREFORE HEREBY STIPULATED, by and between the parties, through their
undersigned counsel of record:
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That any Opposition to Spinal Kinetics, Inc.'s Motion for Summary Adjudication

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Precluding Plaintiffs Synthes, Inc. and Synthes USA Sales, LLC from Recovering Any Damages

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and Precluding Plaintiff Synthes USA, LLC from Recovering Any Lost Profit Damages

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(Administrative Motion to File Under Seal at Docket No. 216) shall be filed/served by June 29,

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2011 and that any Reply shall be filed/served by July 8, 2011;

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2.

That any Opposition to Spinal Kinetics, Inc.'s Motion that Each of Claims 29-31 of

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U.S. Patent No. 7,429,270 is Not Entitled to the Effective Filing Date of the PCT Application

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Under 35 U.S.C. §120 (Docket No. 218) shall be filed/served by June 29, 2011 and that any Reply

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shall be filed/served by July 8, 2011;

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3.

That any Opposition to Plaintiffs' Motion for Partial Summary Judgment

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Dismissing Spinal Kinetics' Anticipation and Obviousness Defenses (Docket No. 224) shall be

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filed/served by June 29, 2011 and that any Reply shall be filed/served by July 8, 2011;

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4.

That any Opposition to Plaintiffs' Motion for Partial Summary Judgment

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Dismissing Invalidity Defenses Based on 35 U.S.C. §112 (Written Description, Enablement,

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Indefiniteness, Best Mode) and §101 (Utility) (Docket No. 225) shall be filed/served by June 29,

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2011 and that any Reply shall be filed/served by July 8, 2011;

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5.

That any Opposition to Plaintiffs' Motion to Strike or Otherwise Exclude Spinal

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Kinetics, Inc.'s Experts, George Strong, Nicholas Koske, and Thomas Smegal on Certain Issues

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(Administrative Motion to File Under Seal at Docket No. 228) shall be filed/served by June 29,

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2011 and that any Reply shall be filed/served by July 8, 2011;
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JOINT STIPULATION AND [] ORDER
CONCERNING BRIEFING SCHEDULE AND HEARING DATES

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That the hearing on Spinal Kinetics, Inc.'s Motion to Dismiss Plaintiffs Synthes,

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Inc. and Synthes USA Sales, LLC for Lack of Standing (Docket No. 206), currently set for 9:00

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a.m. on July 8, 2011, shall be continued until 9:00 a.m. on July 22, 2011; and

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That any Opposition to Spinal Kinetics, Inc.'s Motion to Dismiss Plaintiffs

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Synthes, Inc. and Synthes USA Sales, LLC for Lack of Standing (Docket No. 206) shall be

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filed/served by June 29, 2011 and that any Reply shall be filed/served by July 8, 2011.

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IT IS SO ORDERED:

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Dated: June ___, 2011

By:
Hon. Ronald M. Whyte
United States District Court Judge

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AGREED TO AND SUBMITTED BY:

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Dated: June 15, 2011

DICKSTEIN SHAPIRO LLP

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By:

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//S//
Allan W. Jansen

Attorneys for Defendant
SPINAL KINETICS, INC.

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Dated: June 15, 2011

SIDLEY AUSTIN LLP

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By:

//S//
Jeffrey M. Olson

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Attorneys for Plaintiffs
SYNTHES USA, LLC (f/k/a SYNTHES (U.S.A.);
SYNTHES USA SALES, LLC; and
SYNTHES, INC.

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JOINT STIPULATION AND [ ORDER
CONCERNING BRIEFING SCHEDULE AND HEARING DATES