Opinion
Civil Action No. 98-CV-1072-RPM-OES.
September 8, 2005
ORDER FOR THE DISMISSAL OF CERTAIN CLAIMS
Pursuant to the stipulation of the parties, the Court hereby enters the following Order:
1. Count III of the Fourth Amended Complaint asserts that defendants infringe U.S. Patent No. 5,851,183 (the "Bucholz `183 Patent"). Fourth Amended Complaint at ¶¶ 25-31.
2. Count V of the Fourth Amended Complaint asserts that defendants infringe U.S. Patent No. 5,836,954 (the "Heilbrun `954 Patent"). Fourth Amended Complaint at ¶¶ 40-46.
3. For purposes of this Order, the term "Products at Issue" shall mean those products identified in ¶ 11(a)-(j) on pages 7-8 of the Final Pretrial Order in this case.
4. Counts III and V of the Fourth Amended Complaint are hereby dismissed with prejudice, but only with respect to the sale by defendants of Products at Issue on or before July 31, 2005.
5. Counts III and V of the Fourth Amended Complaint are hereby dismissed without prejudice with respect to the sale by defendants of Products at Issue on or after August 1, 2005.
6. Claims 2 and 4 of the counterclaims asserted in defendants' Answer to the Fourth Amended Complaint, in which defendants contend that the Subject Patent Claims are invalid, unenforceable and not infringed, are hereby dismissed without prejudice.
7. Neither this Order nor the underlying stipulation shall affect the remaining claims for patent infringement asserted by plaintiffs against defendants, or any counterclaims asserted by defendants against plaintiffs, with respect to any other patent claim at issue in this case.
8. The fact that the parties have entered into the stipulation underlying this Order, that plaintiffs have agreed to dismiss the claims of patent infringement covered by the underlying stipulation in this Order, and the entry of this Order, shall not be mentioned at trial by any party, shall not be the subject of testimony or documentary evidence, and shall not be argued to the jury.