ORDER RE: DAMAGE PROCEEDINGS

SUSAN ILLSTON, District Judge.

On July 16, 2019, the Court held a final pretrial conference in the above-captioned matter, which is set for jury trial on August 12, 2019. At the conference, counsel for plaintiff indicated that prior orders of the Court with respect to plaintiff's proposed damage experts had left plaintiff with no means to establish damages in the case. Since the patent expired several years ago, injunctive relief is not available, and plaintiff may be without a remedy in this action. The Court requested the parties to submit a proposal as to how best to proceed at this point. The parties filed a joint letter on July 18, 2019, as requested.

The parties jointly agree that the Court could certify the damage orders for interlocutory appeal pursuant to 28 U.S.C. §1292(b), while staying the jury trial on the balance of the case. Alternatively, defendant suggests that defendant could file a motion for summary judgment regarding the lack of a sufficient evidentiary basis for a remedy in this case, which if granted, would lead to dismissal of the liability claims as moot and entry of a single judgment.

The Court prefers to consider the second option first. Micron is directed to file the suggested motion by Wednesday, July 24, 2019. MLC is directed to file a response by Friday, August 2, 2019, and Micron may file a reply by August 6, 2019. The matter will be submitted for decision on the papers. The August 12, 2019 trial is STAYED until further notice.

IT IS SO ORDERED.