Opinion
December 22, 2006.
DILLINGHAM & MURPHY, LLP, PATRICK J. HAGAN (BAR NO. 68264), MARK J. ROGERS (BAR NO. 173005), San Francisco, California, Attorneys for Defendant Z-MAN FISHING PRODUCTS, INC.
JILL NEIMAN (BAR NO. 164702), REBECCA S. SAELAO (BAR NO. 222731), MORRISON & FOERSTER LLP, San Francisco, California, Attorneys for Plaintiff APPLIED ELASTOMERICS, INC.
STIPULATION REGARDING MINIMUM ROYALTIES AND ORDER Honorable Claudia Wilken
CLAUDIE WILKEN, District Judge
Plaintiff and Counter-Defendant Applied Elastomerics, Incorporated ("AEI") and Defendant and Counter-Complainant Z-Man Fishing Products, Incorporated ("Z-Man"), through their respective attorneys of record, submit this stipulation and proposed order.
Whereas AEI has until January 5, 2007 to bring a motion for judgment on the pleadings that Z-Man was required to pay AEI minimum royalties under the license agreement between the parties with an effective date of April 26, 2001 ("the Agreement") whether or not the products sold by Z-Man fell are covered by the licensed Patent Rights (as the term is defined in the Agreement); and
Whereas the Parties seek to avoid unnecessary motion practice by stipulation.
IT IS HEREBY STIPULATED between AEI and Z-Man as follows:
It is agreed that, if the Agreement is enforceable, regardless of whether any products made, used, imported, sold or offered for sale by Z-Man were covered by the licensed Patent Rights, the terms of the Agreement required payment of minimum royalties by Z-Man. Notwithstanding the foregoing, Z-Man maintains and does not waive any other defenses in this action or concede any of the elements of AEI's claims, including, but not limited to, whether a contract (the Agreement) was ever formed or, if it was formed, whether the Agreement is void or voidable. The parties also continue to dispute the dollar amount of the minimum royalty term, if a contract (the Agreement) was in fact formed.