Date: June 24, 2024 Dear Judge Subramanian, Pursuant to paragraph 3(E) of Your Honor’s Individual Practices, Plaintiff Nike, Inc. (“Nike”) and Defendant lululemon usa inc. (“lululemon”) hereby request an extension to the stipulated briefing schedule for summary judgment adopted by this court on February 6, 2024 (ECF 103).

The requested extension is necessary to give the parties sufficient time to resolve issues related to Nike’s clawback of material it asserts is work-product pursuant to Paragraph 19 of the Protective Order (ECF 54).

lululemon believes these materials may be relevant for summary judgment motions.

This will also give lululemon sufficient time to determine whether it will move to compel the clawed-back material, to conduct any supplemental deposition of Dr. Pastore, and finalize the summary judgment briefing.

Nike reserves all rights to oppose any additional relief sought by lululemon.

IT IS HEREBY ORDERED that By Kiy stipulates, agrees, and acknowledges that it shall make a payment to NIKE in the amount of one-million dollars ($1,000,000) per the terms of the parties’ confidential settlement agreement; IT IS FURTHER ORDERED that judgment is entered that By Kiy admits that NIKE is the exclusive owner of the following registered trademarks and all related common law rights: U.S.

Trademark Registration Nos. 3,725,535, 6,368,694, 6,368,691, and 3,721,064 (collectively, the “Asserted Marks,” examples of which are shown below): Reg. No. 6,368,694 The Asserted Marks Reg. No. 6,368,691 Reg. No. 3,725,535 Reg. No. 3,721,064 IT IS FURTHER ORDERED that By Kiy stipulates, agrees, and acknowledges that the Asserted Marks are valid and enforceable; IT IS FURTHER ORDERED that judgment is entered against By Kiy on all of NIKE’s counts in the Complaint (ECF No. 1) because By Kiy infringed the Asserted Marks by manufacturing, or having manufactured, using, transporting, promoting, importing, advertising, publicizing, distributing, offering for sale, and/or selling the products identified in the Complaint (ECF No. 1), and all colorways and variations thereof, including, for example, the following representative products (collectively, the “Infringing Products”): Example Infringing Products IT IS FURTHER ORDERED that By Kiy, and its affiliates, officers, agents, employees, attorneys, and all other persons acting in concert with By Kiy, are hereby permanently enjoined from: manufacturing, transporting, promoting, importing, advertising, publicizing,

distributing, offering for sale, or selling any products (including but not limited to the Infringing Products) under the Asserted Marks or any other marks, names, symbols, or logos which are likely to cause confusion or to cause mistake or to deceive persons into the erroneous belief that any products that By Kiy caused to enter the stream of commerce or any of By Kiy’s commercial activities are sponsored or licensed by NIKE, are authorized by NIKE, or are connected or affiliated in some way with NIKE or the Asserted Marks;

implying NIKE’s approval, endorsement, or sponsorship of, or affiliation or connection with, By Kiy’s products, services, or commercial activities, passing off By Kiy’s business as that of NIKE, or engaging in any act or series of acts which, either alone or in combination, constitutes unfair methods of competition with NIKE and from otherwise interfering with or injuring the Asserted Marks or the goodwill associated therewith;

engaging in any act which is likely to dilute the distinctive quality of the Asserted Marks and/or injures NIKE’s business reputation; representing or implying that By Kiy is in any way sponsored by, affiliated with, or

Arun Subramanian U.S. District Court S.D.N.Y 500 Pearl Street, Courtroom 15A New York, New York 10007 Re: Nike, Inc. v. lululemon usa, inc. (Case No. 1:23-cv-00771-AS) Dear Judge Subramanian, Pursuant to the Scheduling Order (ECF No. 56) and paragraph 3(E) of Your Honor’s Individual Practices, Plaintiff Nike, Inc. (“Nike”) and Defendant lululemon usa, inc. (“lululemon”) (collectively “parties”) hereby request leave to conduct the deposition of James Malackowski, an expert retained by lululemon, 3 days after the close of expert discovery.

ECF No. 56. lululemon informed Nike that Mr. Malackowski will be unavailable for a deposition before the close of expert discovery.

As a result, the parties have agreed to conduct the deposition of Mr. Malackowski on June 18, 2024.

No other requests to take expert depositions out of time have been made in this case.

The Clerk of Court is directed to terminate the motion at ECF No. 126.

None of the information shown for each of the runners ranked 1–10 or 2932 would appear on the leaderboard without the respective runner being a user that shared their information to the leaderboard.

But more than half of what lululemon includes in its page count is either (i) non-substantive aspects of the report (i.e., the table of contents, Dr. Pastore’s 32-page curriculum vitae, the 25-page list of materials considered) or (ii) reproductions of photographs already in the record.

The experts in Chicago Bridge opined on as many as seventeen separate issues, including the applicability of certain laws, the extent of violations, materiality, and propriety of accounting.

Mar. 2, 2020), where the Court highlighted the complexity of the case by pointing to the 384 docket entries, “12 hours” of “hearings on discovery matters,” and corresponding paper submissions from the parties “measuring 47 inches tall,” id. at *6.

Glaukos’ expert opined on a variety of topics beyond infringement and validity—including market demand, competition, and the safety and efficacy of both parties’ products.

For at least the foregoing reasons, Nike respectfully requests that the Court deny lululemon’s motion for leave to conduct two depositions of Nike’s technical expert, Dr. Pastore.

Contrary to the position taken in its briefing, at oral hearing, counsel for Patent Owner agreed that the claim does not require that operation of the climate control mechanism ceases.

Based on the record before us, this understanding of the claim does not render the “until” limitation meaningless and is sufficient to reach our decision, while also being consistent with the ordinary and customary meaning and the Specification.

Petitioner notes Hibi’s explanation “that these abnormality responses are designed, in part, for situations ‘when the driver leaves a child 61 or a pet animal 62 within the vehicle and is away from the automobile.’” Id. (citing Ex. 1008 ¶ 47).

Accordingly, because limitation 1[h] requires instructions that operate the climate control mechanism based in some manner on the predetermined battery level, Petitioner’s challenge to claim 1 is not supported by the preponderance of the evidence before us.

Contrary to Petitioner’s representations, the charge level in Hibi that results in starting the engine does not necessarily correspond to an amount of time that the system can maintain the stored temperature in the manner