“WHEREAS, Plaintiffs TMT Systems, Inc. and Timur P. Sarac (“TMT”) alleged that Defendant Medtronic, Inc. (“Medtronic”) infringed claims 1, 2, 4, 10, 11, and 26 of U.S. Patent No. 7,101,393 (ECF Nos. 1, 21, 37, 138, 177); WHEREAS, Medtronic answered, denied that it infringed the claims of the ’393 patent, and asserted various affirmative defenses, including a defense of invalidity (ECF Nos. 283); WHEREAS, on June 3, 2022, the Court issued an Order, construing the terms “telescoping arm” and “telescoping arms” to have its plain and ordinary meaning (ECF No. 348); WHEREAS, the Court held a supplemental claim construction hearing on June 28, 2023; WHEREAS, on July 22, 2023, the Court issued an Order, ruling there is no new construction of the terms “telescoping arm” and “telescoping arms” and maintaining the plain and ordinary meaning construction (ECF No. 198); WHEREAS, starting on April 22, 2024, a trial was conducted that resulted in a mistrial (ECF Nos. 306, 312); WHEREAS, on May 23, 2024, the parties filed letter briefs regarding additional claim Case 6:20-cv-00973-ADA Document 355 Filed 09/24/24 Page 1 of 5 2 construction disputes (ECF Nos. 325, 326); WHEREAS, the Court held a post-trial claim construction hearing on June 27, 2024; WHEREAS, on July 22, 2024, the Court issued a Post-Trial Claim Construction Order, construing the term “telescoping arm” to have its plain and ordinary meaning, wherein the plain and ordinary meaning is “an arm that is capable of expanding and contracting along its straight line segment(s)” and the term “telescoping arms” to have its plain and ordinary meaning, wherein the plain and ordinary meaning is “more than one telescoping arm.” (ECF No. 348); NOW, THEREFORE, to preserve judicial and party resources and permit appellate review of the Court’s Orders, the parties stipulate and agree as follows: 1. Under the Court’s construction of the terms “telescoping arm” and “telescoping arms” in the Post-Trial Claim Construction Order, Medtronic has not infringed claims 1, 2, 4, 10, 11, and 26 of the ’393 patent because the accused devices do not have “[arms] that can lengthen by multiple segments sliding into (or out of) each other.” 2. The parties stipulate to the entry of judgment of non-infringement of claims 1, 2, 4, 10, 11, and 26 of the ’393 patent, subject to TMT’s forthcoming appeal. Nothing in this Stipulation and Order limits or restricts TMT’s or Medtronic’s rights to appeal, rights on appeal, or rights against the opposing party if the Court’s current determination of non-infringement is vacated or reversed. The parties expressly reserve the right to appeal the Court’s constructions of other claim terms in its Claim Construction Orders as well as the Court’s other Orders, including (for example) the Court’s statements and rulings during the hearings and at trial. 3. Medtronic’s counterclaims filed in this action are hereby dismissed without prejudice. Medtronic reserves all rights in its counterclaims and defenses. TMT’s reserves all rights in its defenses to Medtronic’s counterclaims. Case 6:20-cv-00973-ADA Document 355 Filed 09/24/24 Page 2 of 5 3 4. Each of TMT and Medtronic agrees to bear its own fees and costs in this action. 5. A proposed final judgment reflecting this stipulation of non-infringement and terminating this action is submitted herewith.”