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

Filing 238

STIPULATION AND ORDER STAYING ALL PROCEEDINGS UNTIL THE FEDERAL CIRCUIT ISSUES A FINAL DECISION IN STAUFFER AND SETTING DEADLINE FOR CERTAIN DEFENDANTS TO MOVE OR PLEAD TO 30 DAYS THEREAFTER re 199 . Signed by Judge Jeremy Fogel on 6/15/10. (dlm, COURT STAFF) (Filed on 6/22/2010)

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Christopher T. Holland [SBN 164053] ([e-mail]) Tanya I. Wei [SBN 240867] ([e-mail]) Matthew T. Peters [SBN 256739] ([e-mail]) KRIEG, KELLER, SLOAN, REILLEY & ROMAN LLP 555 Montgomery Street, 17th Floor San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant THE DIAL CORPORATION

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

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.

STIPULATION TO STAY AND SETTING DEADLINE TO MOVE OR PLEAD AND [PROPOSED] ORDER Case No. 5:10-CV-00966-JF 25577\2250747 2

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Plaintiff San Francisco Technology Inc. ("Plaintiff") and the undersigned defendants, The Dial Corporation and Johnson Products Company Inc. ("Defendants"), through their respective counsel, hereby make the following stipulation (the "Stipulation"): WHEREAS, Plaintiff filed its complaint (Dkt. No. 1) on March 5, 2010 (the "Complaint") alleging that Defendants have falsely marked articles in violation of 35 U.S.C. § 292; and 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; and 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"); and 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; and 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; and 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 Dial Corporation and Johnson Products Company Inc. should be stayed pending a final decision by the Federal Circuit; and WHEREAS, the Stipulation would stay the hearings and all related proceedings on the Motion to Dismiss or, in the Alternative, to Stay, or in the Further Alternative, to Sever (Dkt. No. 159) filed by The Dial Corporation on May 7, 2010 as well as the Motion to Dismiss and Motion to Stay in the Alternative filed by Johnson Products Company Inc. (Dkt. Nos. 193 and 194); and WHEREAS, The Dial Corporation has previously stipulated with Plaintiff to extend time to respond to the Complaint to May 7, 2010 (Dkt. No. 27); and -2STIPULATION TO STAY AND SETTING DEADLINE TO MOVE OR PLEAD AND [PROPOSED] ORDER Case No. 5:10-CV-00966-JF 25577\2250747 2

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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 that venue and personal jurisdiction are appropriate in the Northern District of California for this case (To be clear, except for the personal jurisdiction and venue aspects of this stipulation, the parties to this stipulation have not waived any other potential right, claim, argument, counterclaim, and/or defense in law or equity.); and 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 this Court); THEREFORE, THE PARTIES HEREBY STIPULATE THAT: These proceedings and all aspects of the case with respect to Defendants The Dial Corporation and Johnson Products Company Inc. are hereby stayed until: (1) the Federal Circuit issues a final decision in Stauffer v. Brooks Bros., Appeal Nos. 2009-1428, 2009-1430, 20091453 (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; and The responsive pleading of Defendants The Dial Corporation and Johnson Products Company Inc. are hereby due 30 days thereafter; and The stipulating parties have agreed that venue and personal jurisdiction are appropriate in the Northern District of California for this case. However, no other rights, defenses, and/or arguments of either party are intended to be, or are, affected by this stipulation, except for those related to venue and personal jurisdiction expressly stated above. Specifically, nothing in Dial's motion (Dkt. No. 159), Johnson Products' motions (Dkt. Nos. 193 and 194) nor Plaintiff's potential objections and/or responses to those motions are waived, and Dial and Johnson Products specifically reserve the right to reassert those defenses and/or arguments at a later time.

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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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Respectfully submitted, KRIEG, KELLER, SLOAN, REILLEY & ROMAN LLP

By:

/s/ Christopher T. Holland Counsel for The Dial Corporation

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 signatory below. Dated: June 11, 2010 MOUNT & STOELKER, P.C.

By:

/s/ 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.

Kirkland & Ellis LLP By: /s/

Matthew V. Topic Kirkland & Ellis LLP 300 North LaSalle Chicago IL 60654 Phone: [phone] Fax: [phone] Email: [e-mail] Counsel for Johnson Products Company Inc. PURSUANT TO STIPULATION, IT IS SO ORDERED:

By:

THE HON. JEREMY FOGEL United States District Court Judge
STIPULATION TO STAY AND SETTING DEADLINE TO MOVE OR PLEAD AND [PROPOSED] ORDER Case No. 5:10-CV-00966-JF