STIPULATION AND [PROPOSED] ORDER TO CONTINUE CASE MANAGEMENT CONFERENCE AND STAY OF CASE

EDWARD M. CHEN, District Judge.

This case presently is scheduled for a Case Management Conference on Thursday, April 30, 2015. The Joint Case Management Conference Statement is due on April 23, 2015. The parties respectfully request that the Court continue the Case Management Conference until sometime after the completion of appellate review of the summary judgment order entered in the related case Microsoft Corp. and Google v. GeoTag, Inc., Case No. 1:11-cv-175 (RGA) (D. Del.) ("Delaware Action), currently on appeal to the Federal Circuit in the case entitled Microsoft v. GeoTag, Inc., Case No. 15-1140.

1. In April 2014, the District of Delaware issued an order denying Google's motions for summary judgment of laches and invalidity and granting Google's motion for noninfringement, involving the same GeoTag patent involved in this case. The public version of the Court's Memorandum Opinion is Dkt. No. 477, filed April 22, 2014.

2. On October 6, 2014, this Court entered the Stipulation and Proposed Order to Continue Case Management Conference and Stay of Case (Dkt. No. 219), ordering the case management conference continued until April 30, 2015, and the case stayed until then, so that the Court and the parties could know the outcome of the appellate review of the summary judgment order entered in the Delaware Action.

3. Final judgment in the Delaware Action was entered on October 7, 2014 (Dkt. No. 521) after the Delaware court granted a stipulation of dismissal as to Microsoft on October 1, 2014 (Dkt. No. 518). GeoTag thereafter appealed the judgment to the Federal Circuit, Case No. 15-1140 (entitled Microsoft Corp. v. GeoTag, Inc.) on November 6, 2014 (Dkt. No. 522). GeoTag has filed its opening brief in the Federal Circuit. Google's opposition is due on June 19, 2015. No hearing date has been set.

4. The parties in this case believe that it makes sense for the parties and the Court to know the outcome of the appellate adjudication of the summary judgments order in the Delaware Action before proceeding with this case because the Federal Circuit's ruling will likely be instructive on issues posed in this action and may even be dispositive of this action. Further, a stay of proceedings until the Federal Circuit rules on GeoTag's appeal will promote judicial economy by likely bringing finality and certainty to issues regarding claim construction and infringement. Many of the same claim terms that are proposed for construction in this action were construed in the Delaware Action. The Federal Circuit's ruling on those constructions will therefore directly impact this action. Additionally, the claims terms that are the basis for those summary judgment orders ("dynamic replication" and "geographical areas") are also a basis for Zoosk's non-infringement defense in this action.

In the alternative, if the Court does not stay this action pending appeal, it could cost both the Court and the parties substantial resources. The parties would likely complete claim construction, fact discovery, expert reports, and dispositive motions before a ruling from the Federal Circuit. These exercises could be for naught depending on the Federal Circuit's ruling. As such, in the context of concurrent patent infringement lawsuits involving the same patents, courts frequently stay all proceedings following an appeal of one of the related cases to the Federal Circuit. See e.g., Phonometrics, Inc. v. Economy Inns of America, 349 F.3d 1356, 1360 (Fed. Cir. 2003) (acknowledging that the "district court twice stayed the present actions pending our decisions in Northern Telecom and Choice Hotels, respectively"); Smithkline Beecham Corp. v. Apotex Corp., 2004 WL 1615307, *7 (E.D. Pa. 2004) (staying consolidated action against non-Apotex defendants pending review of ruling from Apotex case); Rosenthal Collins Group, LLC v. Trading Tech. Int'l, Inc., 2009 WL 3055381 (N.D. Ill. 2009) (staying case because "it makes little sense to proceed further on the merits of the underlying patent infringement dispute" until the Federal Circuit rules on claim construction issues in other actions that "may affect the direction of this case").

Accordingly, the parties to this action hereby respectfully request that the Court continue the Case Management Conference currently scheduled to take place on April 30, 2015 until sometime after the completion of the appellate review of the summary judgment orders entered in related case Microsoft Corp. and Google v. GeoTag, Inc., Case No. 1:11-cv-175 (RGA) (D. Del.) and Federal Circuit Case No. 15-1140 (entitled Microsoft Corp. v. GeoTag, Inc.), or to a future date convenient to the Court, and to continue the stay of this case until that continued Case Management Conference.

SO STIPULATED.

PURSUANT TO STIPULATION, IT IS SO ORDERED. The CMC is reset for 7/30/2015 at 10:30 a.m. An updated joint CMC statement shall be filed by 7/23/2015.

IT IS SO ORDERED AS MODIFIED.