10/9: Congoleum Corporation v. Metroflor Corporation and Halstead New England Corporation (patent infringement)
10/13: BASF Catalysts LLC v. Johnson Matthey Inc. and Johnson Matthey Catalysts, LLC (patent infringement)
10/13: Stiefel Research Australia Pty Ltd. v. Perrigo Company, Perrigo Israel Pharmaceuticals Ltd. (patent infringement)
10/14: BAE Systems Information and Electronic Systems Integration Inc. v. Aeroflex Incorporated and Aeroflex Plainview Inc. (patent infringement)
10/14: Shelbyzyme LLC v. Genzyme Corporation (patent infringement)
10/15: Tristrata Technology Inc. v. Vivant Pharmaceuticals LLC and betterhealthyskin.com LLC (patent infringement)
10/20: Muthalampet v. North American Hot Breads Inc. (trademark infringement)
10/20: Wyeth v. Intervet Inc. and Boehringer Ingelheim Vetmedica, Inc. (patent infringement)
10/22: Cephalon Inc. v. Barr Pharmaceuticals, Inc., Barr Pharmaceuticals, LLC and Barr Laboratories Inc. (patent infringement)
10/22: Nokia Corporation v. Apple Inc. (patent infringement)
10/23: Alcon Research Ltd. v. Apotex Corporation and Apotex Inc. (patent infringement)
10/26: St. Clair Intellectual Property Consultants Inc. v. Apple Inc. (patent infringement)
10/26: Radio Foods LLC v. Born Free Holdings Ltd. (trademark infringement)
10/27: Mathilda and Terence Kennedy Institute of Rheumatology Trust v. Amgen Inc. and Wyeth (patent infringement)
10/28: Deston Therapeutics LLC, Unigen Pharmaceuticals Inc. v. TriGen Laboratories Inc. and Irisys Inc. (patent infringement)
10/29: Aventis Pharma S.A. and Sanofi-Aventis US, LLC v. Sandoz Inc. (patent infringement)
10/29: Drager Medical AG & Co. KG, Draeger Medical Inc. and Draeger Medical Systems Inc. v. Maquet Inc. and Maquet Critical Care AB (patent infringement)
10/29: Eurand Inc. and Anesta AG v. Teva Pharmaceuticals USA, Inc., Teva Pharmaceutical Industries Ltd. and Barr Laboratories, Inc. (patent infringement)
11/2: Verizon Clinton Center Drive Corp. v. EON Corporation (patent infringement)
11/3: Analog Devices Inc. v. Knowles Electronics LLC (patent infringement)
11/5: Purdue Pharma Products LP and Napp Pharmaceutical Group Ltd. v. Sun Pharmaceutical Industries, Inc., Sun Pharma Global FZE and Caraco Pharmaceutical Laboratories Ltd. (patent infringement)
11/6: NetDeposit LLC v. BServ Inc., Diebold Inc. and Wausau Financial Systems, Inc. (patent infringement)
11/6: Takeda Pharmaceutical Company Ltd. and Takeda Pharmaceuticals North America Inc. v. Teva Pharmaceuticals USA, Inc. and Teva Pharmaceutical Industries Ltd. (patent infringement)
11/10: Accenture Global Services GmbH and Accenture LLP v. Guidewire Software Inc. (patent infringement)
11/10: Chase Bank USA N.A. v. Source Inc. (patent infringement)
11/13: Brinkmeier v. BIC Corporation and BIC USA Inc. (patent infringement)
11/13: Cooper Notification Inc. v. Twitter Inc., Everbridge, Inc. and Rave Wireless Inc. (patent infringement)
11/16: FuzzySharp Technologies Inc. v. Nvidia Corporation, Dell Inc., Sony Electronics, Inc., Sony Computer Entertainment America, Inc. and Matrox Graphics Inc. (patent infringement)
11/17: Edwards Lifesciences AG and Edwards Lifesciences LLC v. Medtronic Inc., Medtronic CoreValve LLC and Medtronic Vascular, Inc. (patent infringement)
11/19: Abbott Laboratories and Wisconsin Alumni Research Foundation v. Teva Parenteral Medicines Inc., Teva Pharmaceuticals USA, Inc. and Teva Pharmacuetical Industries Ltd. (patent infringement)
11/19: Allergan Inc., Allergan USA Inc., Allergan Sales, LLC, Endo Pharmaceuticals Solutions Inc., Supernus Pharmaceuticals Inc. v. Sandoz Inc. (patent infringement)
11/20: Xilinx Inc. v. LSI Corp. and Agere Systems, Inc. (patent infringement- declaratory judgment)
11/20: Transcore LP v. Mark IV Industries Corp. (patent infringement)
11/23: Pfizer, Inc., Pfizer Ireland Pharmaceuticals, Warner-Lambert Company and Warner-Lambert Company, LLC v. Mylan Inc., Matrix Laboratories Limited and Matrix Laboratories, Inc. (patent infringement)
11/25: Daiichi Sankyo Co. Ltd. and Daiichi Sankyo Inc. v. Sandoz Inc. (patent infringement)
11/25: Eleven Engineering Inc. and Eleven Engineering Game Control LLC v. Nintendo Co. Ltd., Nintendo of America Inc., Sony Corporation, Sony Computer Entertainment Inc., Sony Computer Entertainment America, Inc., et al. (patent infringement)
11/25: Schering-Plough Healthcare Products, Inc. v. Perrigo Company (trademark infringement)
11/25: Sidergas SpA v. Lincoln Electric Company, Inc. and Lincoln Global Inc. (patent infringement)
10/9: Congoleum Corporation v. Metroflor Corporation and Halstead New England Corporation (patent infringement)
Despite similar cases pending in the Northern District of Illinois, Judge Farnan declined to transfer the case out of Delaware. Stored Value Solutions, Inc. v. Card Activation Technologies, Inc., C.A. No. 09-495-JJF, Memo. Op. (D. Del. Nov. 20, 2009). The Court found that the co-pending cases in Illinois are distributed among five different judges and therefore transferring the case to Illinois would not "increase efficiency over what it is currently." Id. at 8. The fact that a proposed claim construction decision existed, also did not change the Court's opinion "because the construction was not adopted and related to different parties." Id. at 8-9.
Judge Farnan issued an opinion yesterday on a few lingering issues in the Fuji case. This is another St. Clair digital camera patent case; St. Clair received a $3 million dollar jury verdict in 2004 but its execution was stayed until recently due to a dispute over ownership of the patents. St. Clair Intellectual Property Consultants, Inc. v. Fuji Photo Film Co., Ltd., C.A. No. 03-241-JJF at 2 (D. Del. Nov. 19, 2009). The issues included:
- No new trial due to improper exclusion of evidence: The Court reiterated (for the third time in this action) that it was proper to exclude (1) St. Clair's $25 million verdict in the Sony case and (2) license agreements with other companies that have been sued by St. Clair on these patents, because "the danger of unfair prejudice to Fuji was substantial, particularly in light of the fact that damages and liability were being tried together." Id. at 6.
- Pre-judgment interest: Fuji disputed the award of pre-judgment interest in light of a pending appeal, and the fact that St. Clair delayed bringing suit; Judge Farnan disagreed, and granted both pre- and post-judgment interest. Id. at 10.
- Selection of interest rate: Judge Farnan also disagreed with Fuji's argument that the pre- and post-judgment interest rates should be based on the Treasury Bill Rate as opposed to the U.S. Prime Rate. Judge Farnan noted that, although the Court has used both rates at different times in the past, "the Prime Rate provides a better measure of the risk of nonpayment that St. Clair bore," despite Fuji's argument that St. Clair has already "recouped its investment [in the patents] many times over, [and] faces virtually no financial risk with respect to the . . . patents." Id. at 11.
- Interest calculated on pre-tax damages: The Court determined, based on Judge Robinson's unsuccessful experience with after-tax damage calculations, that the interest rate should be calculated based on pre-tax damages.
A party requesting a preliminary injunction in an infringement case must meet a high burden in showing a likelihood of success on the merits, irreparable harm, a balance of hardships in favor of the moving party and that an injunction is in the public's interest. CNH America LLC v. Kinze Manufacturing, Inc., C.A. No. 08-945-GMS, Memorandum (D. Del. Nov. 13, 2009). In CNH America, the plaintiff failed to establish all four factors. Id. at 2. On the merits, the defendant argued that CNH America failed to disclose certain prior art references that would have rendered the patent invalid and that it breached its duty of candor to the PTO by "remaining silent" about a prior art reference during reexamination and "affirmatively misrepresenting the scope of the prior art." Id. (internal citations omitted). The court found that these assertions "were sufficient to raise a substantial question as to invalidity" and that similar questions exist as to infringement. Id. at 3.
Additionally, the Court found that CNH America's irreparable harm arguments were "largely speculative" and the damages are no more difficult to calculate than in most patent infringement suits. Id. at 3. Finally, this was a case where money damages are appropriate and therefore, an injunction is not in the the public's interest. Id. at 4.
The District Court of Delaware in LG Electronics U.S.A., Inc. v. Whirpool Corporation, found that a "formulaic recitiation of the elements of the Lanham Act and Delaware Deceptive Trade Practices" with the insertion of Whirpool's name is insufficient to meet the pleading requirements set forth in Bell Atlantic Corp. v. Twombly. The party making the claim must assert specific factual allegations, not just legal conclusions. Id. at 2-3.
Note: LG Electronics argued that additional factual details supporting its claims were found in its reply brief on the motion to amend. Id. at 2 n.1. The Court, however, declined to consider these facts as the material was not an "integral" part of the complaint. Id. (internal citations omitted).
In yet another decision addressing the sufficiency of pleading inequitable conduct, the Court found under the new standard set forth in the Exergen case that defendant Cisco's amended claims "pass muster under this rigorous standard" and granted defendant's motion for leave to amend. Cisco Systems, Inc. v. Teles AG Informationstechnologien, C.A. Nos. 09-232-SLR, 09-072-SLR, Memo. Order (D. Del. Oct. 16, 2009). A copy of the amended answer
and its Exhibit A is attached here.
Chief Judge Gregory M. Sleet: Rule 52(c) Motion Granted for Prior Art References Not Raised at Trial
In the Court's post-trial decision in In Re Brominidine Patent Litigation, the Court found that the defendants' ANDA products infringed the asserted patents and that defendants failed to prove invalidity. MDL Docket No. 07-md-1866-GMS, Memorandum (D. Del. Oct. 23, 2009). In addition, the Court granted plaintiff's motion for judgment as a matter of law on "numerous prior art references and combinations of references that were not discussed or referred to by any witness at trial." Id. at 42.
In a recent post-trial opinion, district judge Sue L. Robinson emphasized the importance of a patentee's conduct during prosecution for later claims of infringement. In the underlying action, the patentee alleged that defendant's ANDA product, which covered an oral tablet that dissolved without water, contained distinct disintegrating and swelling agents, as required by the patent.
The Court disagreed, resting its conclusion of non-infringement in part on the patentee's own disavowal of the purportedly infringing disintegrating agent:
"Even if plaintiffs could convincingly show that lactose caused the disintegration of StarLac, the patentee's disavowal of lactose in order to distinguish [the prior art] during prosecution clearly shows that lactose cannot be a disintegrating agent within the meaning of the [patent-in-suit]."
The smoking gun evidence? "[During prosecution,] [t]he patentee chose to distinguish its invention from [the prior art] by arguing that the reference failed to teach 'disintegrating agents . . . . Therefore, if lactose is not a disintegrating agent with respect to the [prior art], it would be improper to characterize it as such in the ANDA products."
In Linear Technology Corporation v. Monolithic Power Systems, Inc., C.A. No. 06-476 GMS (D. Del. Nov. 12, 2009) Judge Sleet denied Defendant's JMOL Motion on the issue of obviousness. Id. at 5. Judge Sleet noted that Fed. R. Civ. P. 50(a) requires a JMOL motion to be submitted before the case is turned over to the jury. Id. Then, Fed. R. Civ. P. 50(b) permits the renewal of the JMOL motion after the jury returns a verdict. Id. However, "[a] party dissatisfied with a jury verdict may not prevail on a post-verdict JMOL motion based on grounds not raised in a pre-verdict JMOL motion. By logical extension, when a party fails to file a pre-verdict JMOL altogether, any grounds for JMOL sought by way of a post-verdict motion must be denied." Id. (internal citations omitted).
Magistrate Judge Stark Follows Judge Farnan's Prior Claim Construction in St. Clair Digital Camera Cases
On Friday, Magistrate Judge Stark's claim construction came down on another set of patent infringement cases by St. Clair Intellectual Property Consultants based on their digital camera patents. St. Clair Intellectual Property Consultants, Inc. v. Matsushita Electronic Industrial Co., LTD., 04-1436-LPS (D. Del. Nov. 13, 2009). This case is the latest in a series of cases by St. Clair Intellectual Property Consultants against various companies for infringement of these digital camera patents. Interestingly, this is the third time that these patent claims have been construed by the District of Delaware (the first two cases were before Judge Farnan). While Judge Stark noted that Judge Farnan's constructions in the first two cases were not necessarily binding against these defendants, the court's analysis led it to follow Judge Farnan's interpretation of each claim anyway. The majority of the claims were construed in favor of St. Clair's proposed interpretations. From the looks of this holding (and the fact that everything seems to have a camera these days), I would suspect that the District of Delaware will continue to see cases brought by St. Clair.