Judge Andrews recently ruled on motions for a new trial in Xpertuniverse, Inc. v. Cisco Systems, Inc., C.A. No. 09-157-RGA, Memo. (D. Del. Jan. 30, 2014). Judge Andrews observed that the mtions “might best be described as an afterthought in the [post-trial] briefing.” Id. at 1. His Honor first denied the motion for new trial with respect to the jury’s finding regarding materiality, explaining that if “on appeal, the materiality decision is reversed, it will be because I have either wrongly evaluated the applicable legal standard or the sufficiency of the evidence, and, in either event, I do not believe I am able to conclude . . . that the jury’s verdict was against the clear weight of the evidence.” Id. at 1-2. Judge Andrews made a similar finding with respect to the request for a new trial on damages. Additionally, His Honor explained that he found unpersuasive an argument that $70,000,000 in damages was excessive because “in this particular case . . . the disposition of the damages appeal will necessarily determine whether the award was excessive.” Id. at 2. Similarly, Judge Andrews found that arguments that essentially relied upon pretrial Daubert motions would be included as issues on appeal and “[t]hus, if there was an abuse of discretion, it will be remedied by the Court of Appeals, and, if there was not, then there is no apparent reason why I should grant a new trial on this basis.” Id. at 3. Finally, on a motion for new trial based on the on-sale bar, Judge Andrews explained that his finding that the infringement verdict was not against the great weight of the evidence “also impliedly found that the on-sale bar decision was not against the great weight of the evidence,” and that he would enter an order accordingly. Id.
Judge Richard G. Andrews construed the following claim terms from U.S. Patent No. 8,094,010, the patent at issue in M2M Solutions LLC v. Sierra Wireless Am., Inc., et al., C.A. No.s 12-030-RGA to 12034-RGA (D. Del. Jan. 30, 2014):
“wireless communications circuit for communicating through an antenna”
“monitored technical device”
Magistrate Judge Mary Pat Thynge recently issued a report recommending the proper construction of claim terms relating to geolocation systems. TruePosition, Inc. v. Polaris Wireless, Inc., C.A. No. 12-646-RGA-MPT (D. Del. Feb. 4, 2014). The following claim terms of U.S. Patent No. 7,783,299 were construed by Judge Thynge:
“means for monitoring” (as used in claim 113 and as used in claim 114);
“means for detecting” (as used in claim 113 and as used in claim 114);
“means for initiating” (as used in claim 113 and as used in claim 114); and
“in response” (as used in each of claims 98, 113, and 114).
Magistrate Judge Thynge found that the ’299 patent “does not disclose an algorithm to perform the “means for detecting” function in claims 113 and 114 and, as a result, recommended that those claims be found invalid as indefinite under 35 U.S.C. § 112, ¶2.
Judge Richard G. Andrews recently denied a plaintiff’s request for a single trial on infringement and invalidity against nine defendants. Eon Corp. IP Holdings LLC v. Flo TV Inc., C.A. No. 10-812-RGA (D. Del. Jan. 30, 2014). Judge Andrews explained that he did not think the nine defendants were properly joined in the first place, but in any event believed that it would be “completely unfair and prejudicial” and likely reversible error to force them to defend themselves in a single joint trial. The Court therefore scheduled nine separate five-day trials to be held between March and September of 2014.
In a recent Order, Judge Richard G. Andrews denied plaintiff’s motion for entry of judgment with respect to the court’s claim construction. Buyerleverage Email Solutions, LLC v. SBC Internet Services, Inc., et al., C.A. No. 11-645-RGA (D. Del. Jan. 24, 2014). As Judge Andrews explained, the parties had requested that “about 14 terms” be construed, and Judge Andrews construed “three critical terms” from the 14. Id. at 1. Plaintiff thereafter determined that the constructions were “harmful enough to its case that it wanted to concede and go the Federal Circuit.” Id. The parties disagreed as to what Judge Andrews had decided and “(perhaps) what was necessary to put the case into a posture where the Federal Circuit would accept an appeal.” Id.
Judge Andrews noted that the Federal Circuit has “constitutional concerns about reviewing claim constructions.” Id. Judge Andrews further explained that in other cases parties “managed to stipulate to a final judgment” if one party thought the claim construction needed to be appealed. Id. He found that practice different from the instant case, where it seemed that plaintiff’s “proposal beg[ged] the Federal Circuit to remand the case for clarification.” Id. at 1-2. While acknowledging that the parties “think the most economical and/or efficient way to proceed is with a visit to the Court of Appeals,” Judge Andrews concluded that it would “not be responsible of [him] to enter any of the pending proposals for judgment” and denied plaintiff’s motion. Id. at 2.
In a footnote, Judge Andrews provided some guidance as to when he may enter final judgment: “If the parties can stipulate to a judgment, as indicated above, I would probably grant that. If Plaintiff submits a motion for entry of judgment that explicitly states that it will agree to dismiss its case if the Court of Appeals does not have a sufficient record on which to make its review, I would probably grant that too. Or I can extend the schedule, the parties can finish discovery, including resolution of pending discovery disputes, do expert reports, and summary judgment motions. There are probably other alternatives that the parties can come up with.” Id. at 2 n.4
In a recent post-trial decision, Judge Renee Marie Bumb of the District of New Jersey, sitting by designation, considered the validity of Endo’s patented drug for the treatment of migraines. Endo Pharmaceuticals Inc. v. Mylan Pharmaceuticals Inc., Civ. No. 11-717 (RMB/KW) (D. Del. Jan. 28, 2014). Mylan previously had conceded that it infringed under the Court’s claim construction, with which Mylan disagreed. Accordingly, the trial focused on whether Endo’s patent was invalid as obvious, as anticipated, for lack of written description, or for failure to enable. The Court found no basis to find the patent invalid, and entered judgment in favor of Endo. During trial, Endo filed a terminal disclaimer relating to two other asserted patents, and unequivocally represented to the Court that it was abandoning its infringement claims with respect to those two patents. The Court found that Endo’s strategic decision had the effect of waiving those claims, and held that Endo is judicially estopped from asserting those patents against the defendant in the future.
Judge Sue L. Robinson recently denied a defendant’s motion for leave to amend its answer. Round Rock Research v. Sandisk Corporation, C.A. No. 12-569-SLR (D. Del. Jan. 30, 2014). The Court explained that
defendant requests the opportunity to expand the scope of the [case] . . . by amending its answer to include monopolization and conspiracy claims. Although the motion is timely, in terms of case management, [the Court] conclude[s] that the complex issues identified in the motion should be litigated as a separate case, given the fact that the patent dispute to date has been sufficiently vexatious and [the Court] would likely bifurcate the antitrust and conspiracy claims from the patent claims in any event.
Id. at 1.
In Immersion Corporation v. HTC Corporation, et al., C.A. No 12-259-RGA (D. Del. Jan. 21, 2014), Judge Richard G. Andrews ruled on three discovery disputes and, as a result, cancelled a scheduled hearing regarding the disputes. Id. at 1-2.
First, the Court ruled that it was overly burdensome to require defendants to respond to interrogatories that would require their “expert to review over four million source code files.” Id. at 1. Defendants had provided this source code to plaintiff and it was plaintiff’s burden to review it for potentially infringing sections. Id.
On the other hand, the Court ordered defendants to supplement another interrogatory response. “[A]s the Plaintiff is requesting information about [defendants’] own devices, interrogatory 60 is not unduly burdensome. Therefore, the Defendants are ordered to supplement their response to interrogatory 60 to include all accused devices.” Id.
Finally, while plaintiff argued that defendants had not produced all core technical documents, the Court concluded that “this dispute is not ripe as the parties are continuing to discuss this issue and have not followed the Court’s scheduling order which requires parties to meet and confer prior to bringing a discovery dispute to the Court’s attention.” Id. at 2.
In Robocast, Inc. v. Apple, Inc., C.A. No. 11-235-RGA (D. Del. Jan. 28, 2014), Judge Richard G. Andrews granted defendant’s Daubert motions to exclude plaintiff’s expert on the subject of internet advertising as well as its damages expert. The internet advertising expert had relied on various internet sources to conclude that “Automated Browsing System (‘ABS’) advertising increases Click Through Rates (‘CTR’) an average of 33% over static advertising.” Id. at 1. The sources included sites that defendant claimed were “unreliable because they were either self-interested sales pitches or misread by” the expert. Id. at 2.
The Court concluded that this evidence was unreliable and had not been reliably applied. First, “[s]tatistical information in press releases and other promotional materials is of doubtful reliability.” Id. at 3. The Court pointed out that it “only ha[d] to consider that the [allegedly unreliable] sources have a wide spread (21% to 68%), which one would not expect if they were accurately measuring the same thing.” Id. at 3-4. The Court “also consider[d] that the ‘statistics’ have nothing approaching a sufficient explanation of what they are purporting to measure.” Id. at 4. As a result, the Court held that the expert’s testimony “was unreliable, and was unreliably applied” and it excluded the testimony. Id. Because the testimony of the internet advertising expert formed the foundation of the damages expert’s testimony, the Court also excluded the damages expert’s testimony. Id.
In a recent memorandum opinion, Judge Richard G. Andrews issued an early claim construction ruling on one term the defendant convinced the Court could be dispositive of the plaintiff’s literal infringement case. Volcano Corp. v. St. Jude Medical, Cardiovascular and Ablation Technologies Division, Inc., et al., C.A. No. 13-687-RGA (D. Del. Jan. 24, 2014). The Court construed that term, “flexible element,” as meaning “a coil,” rejecting the defendant’s argument that the term is a means plus function limitation. Id. at 4. The Court explained that “[w]hen the ’648 patent specification discusses flexibility, it is always in reference to a coil. Because the Court believes that the patentees’ invention was limited to the use of a coil, the term ‘flexible element’ is construed accordingly.” Id. at 8. The Court recognized that it “is a well understood canon of patent law that limitations from the specification generally should not be imported into the claim language,” but noted that where, as here, “a disputed term has no previous meaning to those of ordinary skill in the prior art[,] its meaning, then, must be found [elsewhere] in the patent.” Id. (quoting Irdeto Access, Inc. v. Echostar Satellite Corp., 383 F.3d 1295, 1300 (Fed. Cir. 2004) (alterations in original) (internal quotation marks omitted). The defendant pointed to various dictionary definitions of “flexible element” to show that the term did have a previous meaning to those of ordinary skill in the prior art, but the Court rejected that argument, explaining that “these examples do not relate to the field of art at issue in this case—pressure-sensing guide wires.” Id. at 9.