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    Exhonhit (ND Cal Feb 24, 2010)

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    dsb001
    The court will not approve the parties' proposed stipulation and consent to entry of judgment in its current form. The stipulation implied that the court had made findings that it had not actually made, such as that the patent claims were valid. The court will approve the document only if amended to state that the judgment is not an adjudication on the merits and that the court has not accepted or rejected the stipulated items. The parties must submit a revised stipulation by March 1st or the court will decide the pending motion.

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    Exhonhit (ND Cal Feb 24, 2010)

    Uploaded by

    dsb001
    28 views2 pages
    The court will not approve the parties' proposed stipulation and consent to entry of judgment in its current form. The stipulation implied that the court had made findings that it had not actually made, such as that the patent claims were valid. The court will approve the document only if amended to state that the judgment is not an adjudication on the merits and that the court has not accepted or rejected the stipulated items. The parties must submit a revised stipulation by March 1st or the court will decide the pending motion.

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    The court will not approve the parties' proposed stipulation and consent to entry of judgment in its current form. The stipulation implied that the court had made findings that it had not actually made, such as that the patent claims were valid. The court will approve the document only if amended to state that the judgment is not an adjudication on the merits and that the court has not accepted or rejected the stipulated items. The parties must submit a revised stipulation by March 1st or the court will decide the pending motion.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    28 views2 pages

    Exhonhit (ND Cal Feb 24, 2010)

    Uploaded by

    dsb001
    The court will not approve the parties' proposed stipulation and consent to entry of judgment in its current form. The stipulation implied that the court had made findings that it had not actually made, such as that the patent claims were valid. The court will approve the document only if amended to state that the judgment is not an adjudication on the merits and that the court has not accepted or rejected the stipulated items. The parties must submit a revised stipulation by March 1st or the court will decide the pending motion.

    Copyright:

    Attribution Non-Commercial (BY-NC)
    Download as PDF, TXT or read online from Scribd
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    1

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    4
    5 IN THE UNITED STATES DISTRICT COURT
    6
    FOR THE NORTHERN DISTRICT OF CALIFORNIA
    7
    8
    9
    EXONHIT THERAPEUTICS S.A., a No. C 07-01427 WHA
    10 French société anonyme, and
    EXONHIT THERAPEUTICS, INC., a
    11 Delaware corporation,
    United States District Court

    REJECTION OF STIPULATION
    Plaintiffs, AND CONSENT TO ENTRY OF
    For the Northern District of California

    12
    JUDGMENT
    13 v.

    14 JIVAN BIOLOGICS, INC., a Delaware


    corporation,
    15
    Defendant.
    16 /

    17 AND RELATED COUNTERCLAIMS


    /
    18
    19 The parties are free to settle and dismiss their case or stipulate to an injunction. The

    20 parties are not, however, entitled to obtain a court order stating that there has been an

    21 “adjudication on the merits” when no such thing has occurred. The Court will not sign on to a

    22 document that states in the stipulation part (and thus implies in the judgment part) that “all claims

    23 of the ’571 patent are valid and enforceable” and that the PTO reexamination “did not

    24 substantively change the claims of the ’571 patent.” The Court has made no such findings. To

    25 proceed otherwise would allow the patent owner to represent to other accused third parties down

    26 the road that a court had found the patent valid and that the reexamination did not render the

    27 patent unenforceable against infringing activity prior to reexamination. As such, the Court will

    28 not approve the proposed stipulation and consent to entry of judgment in its current form.
    1 The Court, however, would be willing to sign the document so long as paragraph 4 of the
    2 judgment portion was amended as follows:
    3 4. This is a final judgment. No appeals shall be taken from
    this judgment, and the parties waive all rights to appeal.
    4 This is not an adjudication on the merits by the Court. The
    Court has not accepted (or rejected) any of the stipulated
    5 items set forth above. Nonetheless, based upon the above
    stipulation, the Court will enforce the stipulated judgment
    6 as between the litigating parties.
    7 Additionally, in paragraph 1 of the judgment portion, the phrase “all persons in active
    8 concert or participation with Jivan” is too vague and problematic. How can unidentified non-
    9 parties be bound by this stipulation? This phrase should be removed.
    10 The parties have until NOON ON MARCH 1, 2010, to submit a revised stipulation and
    11 consent to judgment that addresses these problems. If this deadline is not met, the Court will
    United States District Court
    For the Northern District of California

    12 proceed to decide the pending motion.


    13
    14 IT IS SO ORDERED.
    15
    16 Dated: February 24, 2010.
    WILLIAM ALSUP
    17 UNITED STATES DISTRICT JUDGE
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