San Francisco Technology, Inc. v. The Glad Products Company et al

Filing 189

ORDER APPROVING 171 STIPULATION STAYING ALL PROCEEDINGS UNTIL THE FEDERAL CIRCUIT ISSUES A FINAL DECISION IN STAUFFER AND SETTING DEADLINE FOR DEFENDANTS TO MOVE OR PLEAD TO 30 DAYS THEREAFTER. Signed by Judge Jeremy Fogel on 5/28/2010. (jflc2, COURT STAFF) (Filed on 5/28/2010)

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Pamela K. Fulmer (SBN 154736) Chantelle C. Egan (SBN 257938) JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Brian Selden (SBN 261828) Michael J. Klepich (SBN 260574) JONES DAY 1755 Embarcadero Road Palo Alto, CA 94303 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] Attorneys for Defendant RECKITT BENCKISER INC.

**E-Filed 5/28/2010**

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION SAN FRANCISCO TECHNOLOGY INC., v. Plaintiffs, STIPULATION STAYING ALL PROCEEDINGS UNTIL THE FEDERAL CIRCUIT ISSUES A FINAL DECISION IN STAUFFER AND SETTING DEADLINE FOR DEFENDANTS TO MOVE OR PLEAD TO 30 DAYS THEREAFTER AND ------------------ ORDER [PROPOSED] Case No. 5:10-cv-00966-JF

THE GLAD PRODUCTS COMPANY, BAJER DESIGN & MARKETING INC., BAYER CORPORATION, BRIGHT IMAGE CORPORATION, CHURCH & DWIGHT CO. INC., COLGATE-PALMOLIVE COMPANY, COMBE INCORPORATED, THE DIAL CORPORATION, EXERGEN CORPORATION, GLAXOSMITHKLINE LLC, HI-TECH PHARMACAL CO. INC., JOHNSON PRODUCTS COMPANY INC., MAYBELLINE LLC, MCNEIL-PPC INC., MEDTECH PRODUCTS INC., PLAYTEX PRODUCTS INC., RECKITT BENCKISER INC., ROCHE DIAGNOSTICS CORPORATION, SOFTSHEEN-CARSON LLC, SUN PRODUCTS CORPORATION, SUNSTAR AMERICAS INC. Defendants.
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STIPULATION TO STAY AND SETTING DEADLINE TO MOVE OR PLEAD AND [PROPOSED] ORDER Case No. 5:10-CV-00966-JF

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Plaintiff San Francisco Technology Inc. ("Plaintiff") and the undersigned defendants, The Glad Products Company, Bajer Design & Marketing Inc., Colgate-Palmolive Company, Combe Incorporated, and Reckitt Benckiser Inc. ("Defendants"), through their respective counsel, hereby make the following stipulation (the "Stipulation"). WHEREAS, Plaintiff filed its complaint (D.I. 1) on March 5, 2010 (the "Complaint") alleging that each of the Defendants has falsely marked articles in violation of 35 U.S.C. § 292; WHEREAS, Plaintiff had earlier filed a substantially similar complaint asserting the same false marking claim against other defendants in San Francisco Technology Inc. v. Adobe Systems Incorporated, et al., Case No. 2009-06083 ("Adobe"), on December 30, 2009; WHEREAS, on April 13, 2010, after full briefing and argument, Judge Seeborg of the Northern District of California stayed Adobe pending resolution of Stauffer v. Brooks Bros., Appeal Nos. 2009-1428, 2009-1430, 2009-1453 ("Stauffer"); WHEREAS, Judge Seeborg held in Adobe that the circumstances in which a private party has standing under Article III of the United States Constitution to bring a qui tam action for false patent marking under 35 U.S.C. § 292(b) is an issue of first impression currently pending before the United States Court of Appeals for the Federal Circuit in Stauffer; WHEREAS, Judge Seeborg held that once the Stauffer decision is rendered, the Federal Circuit's reasoning and analysis will likely bear directly on this Court's consideration of the pending motions to dismiss for lack of subject matter jurisdiction; WHEREAS, the parties agree that Judge Seeborg's reasoning is equally applicable to this proceeding and, therefore, stipulate and agree that all claims asserted herein against Defendants, The Glad Products Company, Colgate-Palmolive Company, Bajer Design & Marketing Inc., Combe Incorporated, and Reckitt Benckiser Inc. should be stayed pending a final decision by the Federal Circuit; WHEREAS, the Stipulation would stay the hearings and all related proceedings on the Motion to Dismiss (D.I. 76) and Motion to Stay (D.I. 94) filed by Bajer Design & Marketing Inc. on April 8, 2010;

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WHEREAS, the Stipulation would stay the hearing and all related proceedings on the Motion to Dismiss (D.I. 83) filed by Colgate-Palmolive Company on April 8, 2010; WHEREAS, of the Defendants, The Glad Products Company and Reckitt Benckiser Inc. have each previously stipulated with Plaintiff to extend time to respond to the Complaint, pursuant to Civil Local Rule 6-1(a), to May 14, 2010 (D.I. 64 and D.I. 56, respectively); WHEREAS, the purpose of the stay is to narrow the litigated issues in this case and the stipulating parties have agreed to further narrow the litigated issues in this case by agreeing not to object to venue and personal jurisdiction in the Northern District of California for this case; WHEREAS, the requested time modification would have no other effect on the schedule for the case because currently no trial date has been set; and WHEREAS, the parties herein have agreed to stay all proceedings until the Federal Circuit issues a final decision in the Stauffer decision (or further order of the Court). THE PARTIES HEREBY STIPULATE THAT: These proceedings and all aspects of the case with respect to Defendants, The Glad Products Company, Colgate-Palmolive Company, Bajer Design & Marketing Inc., Combe Incorporated and Reckitt Benckiser Inc., are hereby stayed until 1) the Federal Circuit issues a final decision in Stauffer v. Brooks Bros., Appeal Nos. 2009-1428, 2009-1430, 2009-1453 (i.e., at the expiration of time to file a petition for rehearing or the denial of a timely-filed petition), and 2) further order of the Court in accordance with the Federal Circuit's decision in Stauffer; The responsive pleadings of Defendants, The Glad Products Company, Colgate-Palmolive Company, Bajer Design & Marketing Inc., and Reckitt Benckiser Inc., are hereby due 30 days thereafter; and /// /// /// /// /// ///
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The stipulating parties have agreed not to object to venue and personal jurisdiction in the Northern District of California for this case.

Respectfully submitted, Dated: May 13, 2010 JONES DAY

By: /s/ Pamela K. Fulmer Pamela K. Fulmer Counsel for Defendant Reckitt Benckiser Inc. In accordance with General Order No. 45, Section X(B), the above signatory attests that concurrence in the filing of this document has been obtained from the signatories below. Dated: May 13, 2010 MOUNT & STOELKER, P.C.

By: /s/ Daniel H. Fingerman Daniel H. Fingerman MOUNT & STOELKER, P.C. 333 West San Carlos Street, Suite 1650 San Jose CA 95110 Telephone: [phone] Facsimile: [phone] Counsel for Plaintiff San Francisco Technology Inc. Dated: May 13, 2010 FARELLA BRAUN & MARTEL LLP

By: /s/ Roderick Manley Thompson Roderick Manley Thompson FARELLA BRAUN & MARTEL LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Counsel for Defendant The Glad Products Company

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Dated: May 13, 2010

HANSON BRIDGETT LLP

By: /s/ Stephen B. Peck Stephen B. Peck HANSON BRIDGETT LLP 425 Market Street, 26th Floor San Francisco, CA 94105 Telephone: [phone] Facsimile: [phone] Counsel for Defendant Bajer Design & Marketing Inc.

Dated: May 13, 2010

KIRKLAND & ELLIS LLP

By: /s/ David K. Callahan David K. Callahan KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, IL 60654 Telephone: [phone] Facsimile: [phone] Counsel for Defendant ColgatePalmolive Company Dated: May 13, 2010 MCMANIS FAULKNER

By: /s/ Matthew Schechter Matthew Schechter MCMANIS FAULKNER 50 West San Fernando Street 10th Floor San Jose, CA 95113 Telephone: [phone] Counsel for Defendant Combe Incorporated

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STIPULATION TO STAY AND SETTING DEADLINE TO MOVE OR PLEAD AND [PROPOSED] ORDER Case No. 5:10-CV-00966-JF

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PURSUANT TO STIPULATION, IT IS SO ORDERED: May 28 Dated: ______________, 2010

By: THE HON. JEREMY FOGEL United States District Court Judge

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