Free Joint Case Management Statement - District Court of California - California

Case 5:08-cv-00133-RMW

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1 COUNSEL LISTED ON SIGNATURE PAGE 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No. C08 00133 RMW (RS) JOINT CASE MANAGEMENT STATEMENT Case Management Conference Date: May 9, 2008 Time: 10:30 a.m. Courtroom: 6, 4th Floor Judge: Hon. Ronald M. Whyte

12 HOLOGIC, INC., CYTYC CORPORATION, and HOLOGIC L.P., 13 Plaintiffs, 14 vs. 15 SENORX, INC., 16 Defendant. 17 18 SENORX, INC., 19 20 v. Counterclaimant,

21 HOLOGIC, INC., CYTYC CORPORATION and HOLOGIC L.P., 22 Counterdefendants. 23 24 25 26 27 28
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Joint Case Management Statement Case No. C08 00133 RMW (RS)

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The parties, through their counsel, hereby lodge the following jointly proposed case

2 management plan. 3 I. 4 BRIEF DESCRIPTION OF THE ACTION. a. Plaintiff and counter-defendants Hologic, Inc., Cytyc Corporation and Hologic L.P.,

5 ("Hologic") are the assignees of U.S. Patent No. 5,913,813 (the "'813 Patent"), U.S. Patent No. 6 6,413,204 (the "'204 patent") and U.S. Patent No. 6,482,142 (the "'142 Patent") (collectively the 7 "Patents-In-Suit"). 8 b. Defendants and counterclaim plaintiffs SenoRx, Inc. ("SenoRx") make, use, sell and/or

9 offer for sale in the United States a medical device called the Contura Multi-Lumen BalloonTM 10 ("Contura"), used for treatment of women with breast cancer. 11 c. Hologic alleges that SenoRx's making, using, selling and/or offering for sale the

12 Contura in the United States infringes the claims of the Patents-In-Suit, induces infringement of the 13 Patent-In-Suit, and contributes to infringement of the Patents-In-Suit, and that such infringement has 14 been willful. 15 d. Hologic further alleges violation of certain California False Advertising and Unfair

16 Competition statutes by SenoRx in the marketing of the Contura, and also asserts federal Lanham Act 17 unfair competition claims relating to SenoRx's marketing of the Contura. 18 e. SenoRx denies infringement, contributing to infringement and inducing infringement of

19 the Patents-In-Suit and contends that the Patents-In-Suit are invalid because they fail to meet the 20 conditions for patentability set forth in at least 35 U.S.C. § 102, 103 and 112. SenoRx has

21 counterclaimed for declaratory judgment of invalidity and/or non-infringement of the Patents-In-Suit. 22 f. SenoRx has moved to dismiss the California False Advertising and Unfair Competition

23 claims and the federal Lanham Act unfair competition claims. In any event, SenoRx disputes that it 24 has violated any of the statutes in question or otherwise acted improperly in its marketing of the 25 Contura. 26 27 II. 28
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g.

A Case Management Conference has been set for May 9, 2008 at 10:30 a.m. PDT.

JURISDICTION AND SERVICE
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Joint Case Management Statement Case No. C08 00133 RMW (RS)

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a.

This Court has subject matter jurisdiction over Hologic's claims of patent infringement

2 pursuant to 28 U.S.C. § 1338(a) because the claims arise under the Patent Act, 35 U.S.C. § 281. 3 b. SenoRx has moved to dismiss Hologic's unfair competition and false advertising

4 claims, in part for lack of jurisdiction. 5 c. The parties do not dispute that this Court has personal jurisdiction over SenoRx for

6 purposes of this case or that venue is proper in this District. 7 d. All parties have been served and no parties remain to be served or otherwise added to

8 this case. 9 III. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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THE PRELIMINARY INJUNCTION PROCEEDINGS AND SCOPE OF THE TRIAL: a. On April 21, 2008, this Court held a hearing on Hologic's motion for preliminary

injunction. Hologic's motion pertained only to one claim of the '204 patent and one claim of the '142 patent. b. On April 25, 2008, this Court denied Hologic's motion for preliminary injunction. The

Court ordered that the parties schedule a trial 60-90 days from the date of its order. c. d. The parties met and conferred on April 28, 2008 regarding the scope of the trial. The parties have agreed that the trial will address the patent claims (Counts I ­ III of

Hologic's First Amended Complaint). e. In light of the expedited trial date, Hologic has agreed to dismiss the California State

Law Unfair Competition (Count V) and False Advertising (Count VI) claims of its First Amended Complaint. f. The parties currently are discussing whether Hologic's federal Lanham Act unfair

competition claims (Count IV) can be resolved without trial and, if not, how the issue should be addressed. If the parties jointly agree to a specific proposal before the case management conference, the parties will file a supplemental case management statement setting forth that proposal. g. SenoRx will answer Hologic's First Amended Complaint within 10 days of the

resolution of SenoRx's partial motion to dismiss or the other dismissal of all of Counts IV, V and VI. h. The parties have agreed to and would propose that the Court bifurcate the remedies
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Joint Case Management Statement Case No. C08 00133 RMW (RS)

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1 portion as relates to Counts I ­ III for trial with each side waiving any right to a jury trial as to any and 2 all remedies issues. The parties agree and would propose that discovery regarding remedies be stayed 3 until after trial on Counts I-III. 4 i. The parties continue to discuss how Hologic's allegations of willful infringement will If the parties jointly agree to a specific proposal before the case management

5 be adjudicated.

6 conference, the parties will file a supplemental case management statement setting forth that proposal. 7 j. Hologic anticipates that 4-5 days will be needed for trial. SenoRx anticipates 6-7 full

8 trial days will be needed for trial on Counts I-III. 9 IV. 10 DISCOVERY AND PROTECTIVE ORDER: The parties have agreed to abide by the Federal Rules of Civil Procedure with respect to

11 discovery limits. A proposed protective order is being negotiated by the parties and will be submitted 12 under separate cover. Any remaining disputes will be raised at the Case Management Conference. 13 The parties have each taken steps to preserve evidence relevant to the issues reasonably evident in 14 this action. 15 V. 16 CLAIM CONSTRUCTION PROCEDURE PER L.R. 2-1 The parties do not expect to call live witnesses at the claim construction hearing. The parties

17 agree to depositions of any declarants submitting testimony in connection with claim construction 18 briefing, including experts. The parties agree to one deposition of each inventor of the patents-in-suit 19 for purposes of this litigation. The parties currently believe that no prehearing claim construction 20 conference is necessary. The parties are discussing the order of presentation at the claim construction 21 hearing. 22 VI. 23 SETTLEMENT AND ADR The parties believe that they will best be in a position to discuss settlement through private

24 mediation after the claim construction hearing. Accordingly, a tentative date for a potential 25 mediation of June 13, 2008 is set forth in the proposed schedule below. 26 \\ 27 28
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Joint Case Management Statement Case No. C08 00133 RMW (RS)

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1 VII. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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PROPOSED CASE MANAGEMENT SCHEDULE: The parties propose the following schedule: Event Initial disclosures Initiation of discovery Rule 3-1 Disclosures (infringement) Rule 3-3 Disclosures (invalidity) Rule 4-1 Disclosures (identification of terms for claim construction) Rule 4-2 Disclosures (preliminary claim constructions) Opening Claim Constr. Briefs (simultaneous) Identification of Experts (name and subject matter of opinion(s) only) Reply Claim Constr. Briefs (simultaneous) Rule 4-3 Joint Claim Constr. Statement Expert reports exchanged (simultaneous, by both parties as to infringement and invalidity without regard to burden) Claim Construction Hearing Potential mediation Close of Discovery Trial to a jury Date The parties have agreed to serve the information required by Rule 26(a)(1) on or before May 9, 2008. The parties have agreed to serve initial sets of written discovery on or after April 30, 2008. May 6, 2008 May 21, 2008 May 7, 2008 May 12, 2008 May 21, 2008 May 23, 2008 May 30, 2008 May 30, 2008 June 4, 2008

June 9, 2008 June 13, 2008 June 25, 2008 Hologic requests trial the week of July 7, 2008 but is amenable to trial the week of July 14, 2008 if trial can be completed that week and if the Court so prefers. SenoRx requests trial to begin the week of July 14, 2008.

Joint Case Management Statement Case No. C08 00133 RMW (RS)

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1 VIII. DISCLOSURE OF NON-PARTY INTERESTED ENTITIES OR PERSONS 2 The parties' original disclosures under Civ. L.R. 3-16 remain unchanged. Copies of these

3 certifications are attached hereto. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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HOWREY LLP

By:

/s/ Katharine L. Altemus HOWREY LLP 1950 University Avenue, 4th Floor East Palo Alto, California 94303 Attorneys for Plaintiffs Hologic, Inc., Cytyc Corporation, and Hologic L.P.

WILLIAMS & CONNOLLY LLP

By:

/s/ Aaron P. Maurer Bruce R. Genderson Rachael Shanahan Rodman Adam D. Harber WILLIAMS & CONNOLLY LLP 725 ­ 12th Street, N.W. Washington, D.C. 20005

WILSON SONSINI GOODRICH & ROSATI

By:

/s/ F.T. Alexandra Mahaney Natalie J. Morgan WILSON SONSINI GOODRICH & ROSATI 12235 El Camino Real, Suite 200 San Diego, California 92130 Attorneys for Defendant SenoRx, Inc.

Joint Case Management Statement Case No. C08 00133 RMW (RS)

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Filer's Attestation I, Katharine L. Altemus, am the ECF User whose identification and password are being

3 used to file this Joint Case Management Statement. Pursuant to General Order No. 45, § X(B), I 4 attest under penalty of perjury that concurrence in the filing of the document has been obtained 5 from Aaron P. Maurer. 6 Dated: May 2, 2008 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
HOWREY LLP

By:

/s/ Katharine L. Altemus

Joint Case Management Statement Case No. C08 00133 RMW (RS)

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Case 5:08-cv-00133-RMW

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Attachment

Case 5:08-cv-00133-RMW

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Henry C. Su (CSB No. 211202) [email protected] 2 HOWREYLLP 1950 University Avenue, 4 th Floor 3 East Palo Alto, California Telephone: (650) 798-3500 4 Facsimile: (650) 798-3600

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5 Robert Ruyak Matthew Wolf 6 Marc Cohn HOWREYLLP 7 1229 Pennsylvania Avenue, NW Washington, DC 20004 8 Telephone: (202) 783-0800 Facsimile: (202) 383-6610 9 Attorneys for Plaintiffs HOLOGIC, INC., CYTYC 10 CORPORATION and HOLOGIC L.P.
11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 HOLOGIC, INC. 16 CYTYC CORPORATION, and HOLOGIC L.P., 17 Plaintiffs, 18 vs. 19 SENORX, INC., 20 Defendant. 21 22 23 24 25 26 27 28
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PLAINTIFFS' CERTIFICATE OF INTERESTED ENTITIES UNDER CIVIL LOCAL RULE 3-16 DEMAND FOR JURY TRIAL

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PLAINTIFFS' CERTIFICATE OF INTERESTED ENTITlES

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Pursuant to Civil Local Rule 3-16, the undersigned certifies that, other than the named parties, 2 the following listed persons, associations of persons, firms, partnerships, corporations (including 3 parent corporations) or other entities (i) have a financial interest in the subject matter in controversy or 4 in a party to the proceeding, or (ii) have a non-financial interest in that subject matter or in a party that 5 could be substantially affected by the outcome of this proceeding: 6 7
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Connection or Interest Cianna Medical, Inc. PlaintiffHologic, Inc. owns less than a 20% interest in Cianna Medical, Inc., a company that sells brachytherapy devices.

9 10 Dated: January 8, 2008 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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HOWREYLLP

t s r PI intiffs Hologic, Inc., Cytyc Corporation and Hologic L.P.

PLAINTIFFS' CERTlFICATE OF INTERESTED ENTITIES

Case 5:08-cv-00133-RMW

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125984; [email protected]) WILSON SONSINI GOODRICH & ROSATI 12235 EI Camino Real, Suite 200 San Diego, CA 92130 (858) 350-2300 Bruce R. Genderson (pro hac vice application pending) Aaron P. Maurer (pro hac vice application pending) Rachel Shanahan Rodman (pro hac vice application pending) Adam D. Harber (pro haeyjfi~ lJ1lili!:ev-f(fbl1~~J WILLIAMS & CONNOLLY"tLP' 725 Twelfth St. NW Washington, DC 20005 (202) 434-5000 Attorneys for Defendant SENORX, INC.
Document 14 Filed 02/15/2008 Page 1 f 4

F.r. Alexandra Mahaney (CA Bar No.

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UNITED STATES DISTRICT COURT 13 14 15 16 17 18 19 20 21 Plaintiffs, NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ----------------------------------HOLOGIC, INC. CYTYC CORPORATION, and HOLOGIC L.P., x ) ) ) ) )

Case No. C08-00133-MEJ

v.
SENORX, INC., Defendants.

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DEFENDANT'S CERTIFICATE OF INTERESTED ENTITIES OR PERSONS UNDER CIVIL LOCAL RULE 3-16

Pursuant to Civil L.R. 3-16, the undersigned certifies that as ofthis date, other than the named parties, there is no such interest to report.

DEFENDANT'S CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (CASE NO. 08-CV-0133 MEJ)

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Dated: February 15, 2008

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By: . lsi F.T. Alexandra Mahaney F.T. Alexandra Mahaney WILSON SONSINI GOODRICH & ROSATI 12235 EI Camino Real, Suite 200 San Diego, CA 92130

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Bruce R. Genderson (pro hac vice application pending)
Aaron P. Maurer (pro hac vice application pending) Case 3:08-cv~~h~(Jf1lp haFim~ p~gi f 4 Adam D. Harber (pro hac vice application pending) WILLIAMS & CONNOLLY LLP

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725 Twelfth St. NW Washington, DC 20005
Attorneys for Defendant SENORX, INC.

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DEFENDANT'S CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (CASE NO. OS-eV -0133 MEJ)

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CERTIFICATE OF SERVICE U.S. District Court, Northern District of California, Hologic, Inc. et al. v. SenoRx, Inc. . Case No. 08-CV-0133 MEJ I, Kirsten Blue, declare: I am and was at the time of the service mentioned in this declaration, employed in the County of San Diego, California. I am over the age of 18 years and not a party to the within action. My business address is 12235 EI Camino Real, Ste. 200, San Diego, CA, 92130. Case23:DB-pv-001.33-MEJ. )DQc.ument 14 dFiled 02?1~/2008 Page 3 f 4 On Febmary D, :OOtr, served a COPy{les ot me to owmg ocumenl\s,:

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DEFENDANT'S CERTIFICATE OF INTERESTED ENTITIES OR PERSONS UNDER CIVIL LOCAL RULE 3-16
on the parties to this action by placing them in a sealed envelope(s) addressed as follows:

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Henry C. Su ([email protected]) Katharine L. Altemus ([email protected]) HOWREYLLP 1950 University Avenue, 4th Floor East Palo Alto, CA 94303 Telephone: (650) 798-3500 Facsimile: (650) 798-3600 Robert Ruyak ([email protected]) Matthew Wolf ([email protected]) Marc Cohn ([email protected]) HOWREYLLP 1229 Pennsylvania Avenue, NW Washington, DC 20004 Telephone: (202) 783-0800 Facsimile: (202) 383-6610

Attorneys for Plaintiffs HOLOGIC, INC. CYTYC CORPORATION and HOLOGICLP

Attorneys for Plaintiffs HOLOGIC, INC. CYTYC CORPORATION and HOLOGICLP

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(BY MAIL) I placed the sealed envelope(s) fOTcollection and mailing by following the ordinary business practices of Wilson Sonsini Goodrich & Rosati, 12235 El Camino Real, Ste. 200, San Diego, CA. I am readily familiar with WSGR's practice for collecting and processing of correspondence for mailing with the United States Postal Service, said practice being that, in the ordinary course of business, correspondence with postage fully prepaid is deposited with the United States Postal Service the same day as it is placed for collection. (BY OVERNIGHT DELIVERY) I placed the sealed envelope(s) or package(s), to the addressee(s) noted above, designated by the express service carrier for collection and overnight delivery by following the ordinary business practices of Wilson Sonsini Goodrich & Rosati, 12235 EI Camino Real, Ste. 200, San Diego, CA. I am readily familiar with WSGR's practice for collecting and processing of correspondence for overnight delivery, said practice being that, in the ordinary course of business, correspondence for overnight delivery is deposited with delivery fees paid or provided for at the carrier's express service offices for next-day delivery the same day as the correspondence is placed for collection.

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CASE NO. 08-CV-0133 MEJ

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(BY CMlECF) I caused such document(s) to be sent via electronic mail through the Case ManagementlElectronic Case File system with the U.S. District Court for the Northern District of California I declare under penalty ofperjury under the laws of the United States that the above is true and correct, and that this declaration was executed on February 15, 2008.

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CASE NO. 08-CV-0133 MEl