Hologic, Inc. et al v. SenoRx, Inc
Filing
519
AMENDED STIPULATION AND ORDER 517 Extending Case Schedule Deadlines. Signed by Judge Ronald M. Whyte on 8/8/12. (jg, COURT STAFF) (Filed on 8/8/2012)
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Nicholas H. Lee (SBN 229588)
ARNOLD & PORTER LLP
777 S. Figueroa Street, 44th Floor
Los Angeles, CA 90017-5844
Telephone: (213) 243-4000
Facsimile: (213) 243-4199
E-mail: nicholas.lee@aporter.com
Jeffrey E. Faucette (SBN 193066)
SKAGGS FAUCETTE LLP
One Embarcadero Center, Suite 500
San Francisco, CA 94111
Telephone: (415) 315-1669
Facsimile: (415) 433-5994
E-mail: jeff@skaggsfaucette.com
Matthew M. Wolf (admitted pro hac vice)
John E. Nilsson (admitted pro hac vice)
ARNOLD & PORTER LLP
555 Twelfth Street N.W.
Washington, DC 20004-1206
Telephone: (202) 942-5000
Facsimile: (202) 942-5999
E-mail: matthew.wolf@aporter.com
E-mail: john.nilsson@aporter.com
Bruce R. Genderson (admitted pro hac vice)
Aaron P. Maurer (admitted pro hac vice)
Adam D. Harber (admitted pro hac vice)
WILLIAMS & CONNOLLY LLP
725 Twelfth Street, NW
Washington, DC 20005
Telephone: (202) 434-5000
Facsimile: (202) 434-5029
E-mail: bgenderson@wc.com
E-mail: amaurer@wc.com
E-mail: aharber@wc.com
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Attorneys for Plaintiffs
HOLOGIC, INC., CYTYC CORP.
and HOLOGIC L.P.
Attorneys for Defendant
SENORX, INC.
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IN THE UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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HOLOGIC, INC., CYTYC CORP. and
HOLOGIC L.P.,
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Plaintiffs,
Case No.: C-08-0133 RMW
AMENDED JOINT STIPULATION AND
[PROPOSED] ORDER EXTENDING
CASE SCHEDULE DEADLINES
vs.
SENORX, INC.,
Defendant.
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AMENDED J OINT STIPULATION AND [PROPOSED] ORDER EXTENDING CASE SCHEDULE DEADLINES
CASE NO. C-08-0133 RMW
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Plaintiffs and Defendant hereby submit this Amended Joint Stipulation and [Proposed]
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Order requesting an extension of the deadlines in the current Scheduling Order, entered by this
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Court on March 6, 2012. The parties stipulate and agree to move all deadlines as detailed below.
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The parties agree that no prejudice will come to this matter by this extension. The parties, through
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their counsel, hereby lodge the following proposed updated case management statement.
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I.
SCOPE OF ISSUES FOR RETRIAL AND DISCOVERY
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The only issues remaining for trial are those of invalidity and willfulness. Based upon the
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January 3, 2012 Case Management Conference, the parties agree to limited discovery as set forth
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below, and the following updated schedule for such discovery and for the other deadlines in this
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case.
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II.
PROPOSED SCHEDULE
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A.
Fact Discovery
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On or before February 28, 2012, Hologic shall identify to SenoRx via letter all objective
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indicia of non-obviousness on which it intends to rely, with a brief description of the facts on which
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Hologic will rely to support each alleged indicator. All fact discovery shall be commenced in time
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to be completed by September 14, 2012. Document production shall be limited to:
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an updated production of public statements and communications to third-parties
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concerning the commercial performance, features, clinical performance and/or
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benefits of any commercial embodiment of an invention(s) of claims 1 and/or 8 of
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the ‘142 patent. Documents falling within this category would include quarterly and
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annual reports, press releases, transcripts of investor calls, advertisements, marketing
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presentations, brochures, sell sheets, and correspondence with customers;
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alleged to fall within claims 1 and/or 8 of the ‘142 patent;
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annual sales revenue figures for any commercial embodiment of an invention(s)
to the extent that Hologic intends to rely on the Hologic Mammosite® Multi-Lumen
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product as an embodiment of claims 1 and/or 8 of the ‘142 patent, Hologic shall
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produce documents concerning the reason(s) a Multi-Lumen product was introduced,
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the perceived need (or lack thereof) for such a device, the reason(s) the Multi-Lumen
-2AMENDED J OINT STIPULATION AND [PROPOSED] ORDER EXTENDING CASE SCHEDULE DEADLINES
CASE NO. C-08-0133 RMW
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product was not introduced earlier, comparisons versus the Single Lumen
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MammoSite® product, the date of the first proposal for the Multi-Lumen product,
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the instructions for use for the Multi-Lumen product, and the actual use of the Multi-
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Lumen product, including any evidence of conformance.
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Any such production shall be completed by August 14, 2012. In addition, each side may
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serve one deposition notice pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure
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concerning documents produced pursuant to this order and/or any other discovery provided
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pursuant to this order. Any such deposition(s) are to be completed on or before September 14,
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2012. Each party may also update its Rule 26(a) Disclosures pursuant to its obligations under the
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Federal Rules.
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B.
Expert Discovery
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All expert discovery shall be commenced in time to be completed by November 20, 2012.
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Expert discovery shall be limited to the issue of objective evidence of non-obviousness. In this
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regard, Plaintiff may submit an expert report on the issue of objective evidence of non-obviousness
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on or before September 18, 2012. Defendant may submit a responsive report on or before October
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19, 2012. Plaintiff may submit a reply report on or before November 2, 2012. And depositions of
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experts on the issue of objective evidence of non-obviousness are to be completed on or before
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November 20, 2012.
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C.
Dispositive Motions
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Dispositive motions shall be filed no later than December 14, 2012. Responsive briefs shall
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be filed within 35 days after service of opening briefs. Reply briefs shall be filed within 25 days
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after service of responsive briefs. Sur-replies shall not be permitted.
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D.
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A pre-trial conference shall be set for Thursday, March 14, 2013. Trial shall be set for April
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Pre-trial and Trial
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-3AMENDED J OINT STIPULATION AND [PROPOSED] ORDER EXTENDING CASE SCHEDULE DEADLINES
CASE NO. C-08-0133 RMW
Respectfully submitted,
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Dated: July 31, 2012
ARNOLD & PORTER LLP
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s/ Matthew M. Wolf
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Matthew M. Wolf
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Attorneys for Plaintiffs
HOLOGIC, INC., CYTYC CORP.
and HOLOGIC L.P.
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WILLIAMS & CONNOLLY LLP
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s/ Bruce R. Genderson
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Bruce R. Genderson
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Attorneys for Defendant SENORX, INC.
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ATTESTATION UNDER GENERAL ORDER 45 § X.B
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As required by General Order § X.B, I hereby attest that concurrence in the filing of this
document was obtained from all signatories to this Amended Joint Case Management Statement.
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/s/ Matthew M. Wolf
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Matthew M. Wolf
Matthew.Wolf@Aporter.com
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ORDER
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The Court, having considered the parties’ Stipulation Re Case Schedule, hereby grants that
proposed schedule.
IT IS SO ORDERED
Dated:
, 2012
______________________________
Honorable Ronald M. Whyte
United States District Judge
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-4AMENDED J OINT STIPULATION AND [PROPOSED] ORDER EXTENDING CASE SCHEDULE DEADLINES
CASE NO. C-08-0133 RMW
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