` #:3151
`
`
`Nicola A. Pisano (CA Bar No. 151282)
`
`npisano@foley.com
`Jose L. Patiño (CA Bar No. 149568)
`
`jpatino@foley.com
`Justin E. Gray (CA Bar No. 282452)
`
`jegray@foley.com
`FOLEY & LARDNER LLP
`3579 Valley Centre Drive, Suite 300
`San Diego, CA 92130-3302
`Telephone: 858.847.6700
`Facsimile: 858.792.6773
`Attorneys for Defendant and Counter-Plaintiff
`RESHAPE MEDICAL, INC.
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`
`FULFILLIUM, INC.,
`
`Plaintiff,
`
`v.
`RESHAPE MEDICAL, INC.,
`Defendant.
`
`
`RESHAPE MEDICAL, INC.,
`
`Counter-Plaintiff,
`
`v.
`FULFILLIUM, INC. and
`DR. RICHARD CHEN,
`
`
` Counter-Defendants.
`
`
`
`
`
`
`Case No. 2:17-cv-08419-RGK-PLA
`DECLARATION OF NICOLA A.
`PISANO IN SUPPORT OF RESHAPE
`MEDICAL, INC.’S MOTION TO STAY
`PROCEEDINGS PENDING INTER
`PARTES REVIEW
`
`June 4, 2018
`Date:
`9:00 a.m.
`Time:
`Roybal, Courtroom 850, 8th Fl.
`Place:
`Judge: Hon. R. Gary Klausner
`
`
`Case No. 2:17-cv-08419-RPK-PLA
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`RESHAPE 1020
`
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`
`Case 2:17-cv-08419-RGK-PLA Document 106-2 Filed 05/07/18 Page 2 of 4 Page ID
` #:3152
`
`
`I, Nicola A. Pisano, declare as follows:
`1.
`I am an attorney at law duly licensed in the States of California and New
`York and before this Court. I am a Partner at the law firm of Foley & Lardner LLP and
`counsel in this matter for Defendant and Counter-Plaintiff ReShape Medical LLC, f/k/a
`ReShape Medical, Inc. (“ReShape Medical”). I make this declaration based upon my
`personal knowledge, and if called upon to do so, I could and would competently testify
`to the matters stated herein.
`2.
`On at least the following occasions, ReShape Medical has informed
`Fulfillium of its intent to file IPR petitions, as to the ’915 and ’930 patents, if Fulfillium
`would not be amenable to finding a resolution to this case:
`a.
`During the settlement conference between counsels on June 1, 2017.
`b.
`At the case management conference on March 19, 2018.
`3.
`After the case management conference on March 19, 2018, in attempting to
`procure a settlement in good-faith with Fulfillium’s counsel, I encouraged Mr. Turner,
`counsel for Fulfillium, to propose an early date for mediation. I told Mr. Turner that
`ReShape Medical was preparing to file IPR petitions against the ’915 and ’930 patents,
`for which the filing fee alone was almost $85,000, but that ReShape Medical would be
`willing to allocate such funds towards settlement of the litigation if an early resolution
`could be achieved.
`4. While Mr. Turner appeared receptive to ReShape Medical’s invitation on
`March 19, Fulfillium did not respond to that request in a timely manner, and ReShape
`Medical was required to file those IPRs before the April 25, 2018 deadline. ReShape
`Medical specifically deferred preparation and filing of its IPR petitions to preserve those
`funds for possible settlement. Fulfillium did not initially respond to ReShape Medical’s
`invitation to conduct mediation until April 18, 2018, and then only suggested possible
`dates in late June 2018.
`
`
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`Case No. 2:17-cv-08419-RPK-PLA
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`RESHAPE 1020
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`Case 2:17-cv-08419-RGK-PLA Document 106-2 Filed 05/07/18 Page 3 of 4 Page ID
` #:3153
`
`
`I declare under penalty of perjury under the laws of the United States of America
`that the foregoing is true and correct.
`
`Executed on May 7, 2018
`
`
`FOLEY & LARDNER LLP
`
`/s/ Nicola A. Pisano
`Nicola A. Pisano (CA Bar No. 151282)
`
`npisano@foley.com
`
`Attorney for Defendant and Counter-Plaintiff
`RESHAPE MEDICAL, INC.
`
`
`
`
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`Case No. 2:17-cv-08419-RPK-PLA
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`RESHAPE 1020
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`
`
`Case 2:17-cv-08419-RGK-PLA Document 106-2 Filed 05/07/18 Page 4 of 4 Page ID
` #:3154
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that I electronically filed the foregoing with the Clerk of the
`
`Court using the CM/ECF system which will send notification of such filing to the
`Electronic Service List for this case.
`
`Executed on May 7, 2018.
`
`FOLEY & LARDNER LLP
`
`/s/ Nicola A. Pisano
`Nicola A. Pisano (CA Bar No. 151282)
`
`npisano@foley.com
`
`Attorney for Defendant and Counter-Plaintiff
`RESHAPE MEDICAL, INC.
`
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`4817-2359-7411
`
`Case No. 2:17-cv-08419-RPK-PLA
`
`RESHAPE 1020
`
`
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