STIPULATION AND ORDER TO STAY CASE PENDING APPEAL OF RELATED ACTION

TROY L. NUNLEY, District Judge.

Pursuant to L.R. 143 and Fed. R. Civ. P. 83, Plaintiff and Counterclaim Defendant Smart Modular Technologies, Inc. ("Smart Modular") and Defendant and Counterclaim Plaintiff Netlist, Inc. ("Netlist") hereby stipulate and jointly move the Court to stay this action pending resolution of Smart Modular's appeal to the United States Court of Appeal for the Federal Circuit (Appeal No. 18-01611) of the Patent Trial and Appeal Board's recent decision finding unpatentable the claims of United States Patent No. 8,250,295 ("the '295 patent"), which is asserted in this case. For the reasons demonstrated below, good cause exists for the Court to stay this case pending Smart Modular's appeal to the Federal Circuit.

Several events have occurred since the Court declined to reinstitute the stay that warrant another cessation of this litigation. As the Court is aware, on November 14, 2016 the Patent Trial and Appeal Board ("PTAB") found all of the asserted claims of the '295 patent unpatentable, and reversed the patent examiner's previous inter partes reexamination decision. Smart Modular hereafter reopened prosecution of the '295 patent. The patent examiner ultimately rejected all asserted claims of the 02bc295 patent. Smart Modular appealed the examiner's rejection to the PTAB, and on December 12, 2017, the PTAB affirmed the patent examiner's decision (See 12/12/17 Decision, attached as Ex. 1). On February 12, 2018, Smart Modular appealed the PTAB's decision to the Federal Circuit. (See 2/12/18 Notice of Appeal, attached as Ex. 2).

Additionally Smart Modular, on August 11, 2017, amended its complaint to add two additional patents. Netlist has reported that sales of the accused Netlist product from August 11, 2015 to the present are negligible or zero.

A stay is also warranted now, because the Court deferred scheduling any case dates or deadlines pending its decision on Smart Modular's Motion Dismiss and Motion to Strike Netlist, Inc.'s Answer and Counterclaims. (See Dec. 14, 2017 Order, ECF No. 207). A stay of the case would relieve the Court of having to rule on this pending motion and of having to enter a case schedule.

Because a stay (1) may conserve the Court's and the parties' resources; (2) may promote judicial economy or may simplify the issues for trial; (3) may not prejudice any party other than Smart or Netlist, and (4) may be warranted because the Court has set no trial date or other case deadlines, the parties respectfully request the Court approve this Stipulation and enter an Order the case be stayed pending the final outcome of Smart Modular's appeal to the Federal Circuit.

IT IS SO ORDERED.

ATTESTATION CLAUSE

I attest under penalty of perjury that the concurrence in the filing of this document has been obtained from its signatories.