STIPULATION AND [PROPOSED] ORDER TO MODIFY SCHEDULING ORDER

(THIRD REQUEST)

CARL W. HOFFMAN, Magistrate Judge.

Pursuant to Local Rules 6-1 and 26-4, Plaintiff Konami Gaming, Inc. ("Konami" or "Plaintiff") and Defendant Marks Studios, LLC d/b/a Gimmie Games ("Marks Studios" or Defendant") hereby stipulate as follows:

WHEREAS, the parties to this action filed a proposed joint Discovery Plan and Scheduling Order (the "Scheduling Order") on December 30, 2014, (Docket No. 24);

WHEREAS, the Court so ordered the Scheduling Order on January 27, 2015 (Docket No. 31);

WHEREAS, to date, the Plaintiff and Defendant have made their Initial Disclosures pursuant to Federal Rule of Civil Procedure 26(a)(1) and have filed the Stipulated Protective Order required under Local Rule 16.1-4;

WHEREAS, pursuant to the Scheduling Order, discovery is partially stayed until the Court issues a Markman order on claim construction. Until that time, the only permitted discovery: (a) the substantive disclosures included in section C ("Markman schedule") of the Scheduling Order; (b) Defendant's deposition of the inventor(s), (c) Plaintiff's deposition of a technical person knowledgeable concerning operation of Defendant's games, (d) Plaintiff's and Defendant's discovery relating to claim construction and the validity of the patents in suit, and (e) expert discovery;

WHEREAS, the Scheduling Order provided that Plaintiff Konami Gaming, Inc. ("Konami") would serve its Disclosure of Asserted Claims and Infringement Contentions ("Claims and Contentions"), along with supporting documents, by January 14, 2015 (Docket No. 24);

WHEREAS, the parties first requested to modify the Scheduling Order on February 6, 2015 (Docket No. 35);

WHEREAS, the Court so ordered the Scheduling Order on February 6, 2015 (Docket No. 37);

WHEREAS, the parties again requested to modify the Scheduling Order on May 18, 2015 (Docket No. 65);

WHEREAS, the Court so ordered the Scheduling Order on May 19, 2015 (Docket No. 66);

WHEREAS, the parties filed their opening claim construction briefs on October 28, 2016 (Docket Nos. 108 & 109);

WHEREAS, on November 3, 2015, the Court ordered the parties to file a stipulation vacating the dates associated with the Scheduling Order outlined in Docket No. 66 (the court order is Docket No. 110);

WHEREAS, on November 10, 2015, the parties filed a joint stipulation vacating the Scheduling Order, pending the scheduling of Osamu Yoshimi's continued deposition, which this Court so-ordered on November 12, 2015 (Docket No. 112);

WHEREAS, on December 2, 2015, the parties filed a second joint stipulation requesting additional time to schedule Mr. Yoshimi's continued deposition and requested until January 22, 2016 to submit to this Court a revised Scheduling Order;

WHEREAS, the parties have schedule Mr. Yoshimi's continued deposition, which will take place on February 26, 2016;

WHEREAS, Konami stated in its Initial Infringement Contentions and Supplemental Initial Infringement Contentions that: "For purposes of claim construction under Markman only, Konami identifies no apparatus, product, device, process, method, act or other instrumentality that incorporates or reflects a particular claim.";

WHEREAS, Konami contends it was not required to identify the commercial embodiments in its Initial Contentions based on its interpretation of the scheduling order under which discovery was limited to claim construction purposes only and, therefore, that such identification at that time was not necessary. The Court since has ruled that the scheduling order is not so limited.

WHEREAS, the parties agree that there are commercial embodiments that Konami will now identify, and that the parties shall engage in necessary discovery concerning the foregoing.

WHEREAS, the parties agree that Konami may serve a revised Supplemental Disclosure of Asserted Claims and Infringement Contentions, that Marks Studios may then serve a revised Disclosure of Non-Infringement, Invalidity and Unenforceability Contentions, and Konami may then serve a revised Response to Non-Infringement, Invalidity and Unenforceability Contentions, and that the Claim Construction process as contemplated in the Local Patent rules must then be renewed following the revised disclosures;

WHEREAS, in accordance with the Protective Order, Konami will produce the source code for the commercial embodiments of the patents-in-suit;

WHEREAS, the parties previously filed simultaneously their Opening Claim Construction briefs and both parties agree to simultaneously submit revised Opening Claim Construction briefs followed by the simultaneous submission of Responsive Claim Construction briefs;

WHEREAS, this is the parties' third request to modify the Scheduling Order;

IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned counsel for the named parties hereto, that the schedule in the Scheduling Order will be amended as follows:

IT IS FURTHER STIPULATED AND AGREED that nothing herein alters the obligations and requirements included in the Scheduling Order and that this Stipulation is made in good faith and not for the purpose of delay.

IT IS SO STIPULATED THROUGH COUNSEL OF RECORD,

ORDER

PURSUANT TO THE STIPULATION, IT IS SO ORDERED: