1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GENENTECH, INC., a Delaware Case No.: 18-CV-1518 JLS (JLB) corporation, 12

ORDER GRANTING JOINT

Plaintiff, 13 MOTION TO BIFURCATE v. “EXCEPTIONAL CASE” 14

DETERMINATION AND

ELI LILLY AND COMPANY, an Indiana 15 ATTORNEY FEES REQUEST corporation,

16 Defendant. (ECF No. 78) 17 18 Presently before the Court is Plaintiff Genentech, Inc. and Defendant Eli Lilly and 19 Company’s Joint Motion to bifurcate the “exceptional case” determination under 35 U.S.C. 20 § 285 and attorney fees motion under Federal Rule of Civil Procedure 54(d)(2). (“Mot.,” 21 ECF No. 78). 22 On March 16, 2020, the Court granted Plaintiff’s motion to voluntary dismiss with 23 prejudice this action in its entirety and declared Defendant the prevailing party. See ECF 24 No. 77. Defendant now intends to file a motion for attorney fees pursuant to Federal Rule 25 of Civil Procedure 54(d)(2) and 35 U.S.C. § 285. Mot at 2. Under section 285, “a court in 26 an exceptional case may award reasonable attorney fees to the prevailing party in a patent 27 infringement lawsuit.” Id. (citing Octane Fitness, LLC v. ICON Health & Fitness, Inc., 28 134 S. Ct. 1749, 1756 (2014)). The Parties request the Court decide exceptionality before 1 || Defendant presents evidence on the amount of its reasonable attorney fees. Jd. They make 2 || this request because the stay-at-home orders issued throughout the country in response to 3 COVID-19 pandemic has made it difficult for Defendant to collect and timely organize 4 billing information necessary to meet their burden to prove the reasonableness of 5 || attorney fees. Id. 6 Good cause appearing, the Court GRANTS the Joint Motion. Defendant may file 7 motion on exceptionality on or before April 1, 2020. Defendant must include a fair 8 |/estimate of its attorney fees requested in its motion. If the Court determines the case is 9 ||exceptional and that Defendant is entitled to attorney fees, Defendant must file a motion 10 |/requesting reasonable attorney fees within fourteen days after the Court issues its order on 11 || exceptionality. 12 IT IS SO ORDERED. 13 Dated: March 31, 2020 tt 14 jen Janis L. Sammartino 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28