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On February 25th, 2011, in OSI Pharmaceuticals, Inc. v. Teva Pharmaceuticals USA, Inc., Civ. No. 09-185-SLR (Consol.) (D. Del. Feb. 25, 2011), Judge Robinson issued a memorandum order denying Defendants’ motion for leave to amend their pleadings. While the court’s scheduling order set January 29, 2010 as the deadline to amend pleadings, id. at 1, Defendants filed their motion to amend on October 25, 2010 — almost nine months after the deadline, id. at 2. Defendants argued that “good cause” existed for their late motion, citing the volume of documents produced by Plaintiffs, the specificity required by Federal Rule of Civil Procedure 9(b), and the “protracted discovery proceedings.” Id. Judge Robinson disagreed, noting that (1) the documents at issue had been available “well before October 2010[,]” (2) there were no citations to the depositions held in August 2010 in Defendants’ opening brief, and (3) Defendants had changed their legal argument in their letter submission. Id. at 2-3. While noting Rule 15(a)(2)’s provision that courts should “freely give leave [to amend pleadings] when justice so requires[,]” id. at 1, Judge Robinson concluded that “justice [did] not require leave to amend in this instance.” Id. at 3.

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Plaintiffs moved to defer the court’s ruling on defendant Lifescan’s exceptional case motion which requested an award of fees and expenses until the resolution of their pending appeal before the Federal Circuit. Roche Diagnostics Operations, Inc., et al. v. Abbott Diabetes Care, et al., C.A. No. 07-753-LPS, Memo. Order (D. Del. March 3, 2011). Judge Stark granted the motion and found that the outcome of the appeal “will affect resolution” of the motion, by either changing the “prevailing party” to plaintiffs, thereby mooting the motion, or changing the fee application of defendants to include costs and fees from the appeal. Id. at 2.

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Last Wednesday, in MagSil Corp. v. Seagate Technology, C.A. No. 08-940 (D. Del. Feb. 16, 2011), Chief Judge Bartle (sitting by designation from the District of New Jersey) granted Defendants’ motion for summary judgment and issued a memorandum opinion addressing Plaintiff’s asserted claims in light of the enablement requirement of 35 U.S.C. § 112.

The asserted claims related to a junction consisting of two or more electrodes separated by a layer of insulation. The junction exhibited an electrical resistance which could be increased or decreased by exposing the junction to magnetic fields. Id. at 4. While the specification taught a method of constructing junctions with a maximum resistive change of 11.8%, the inventors claimed junctions with resistive changes of “at least 10%” – essentially claiming not only the junction taught by the specification, but all junctions “with resistive changes of 20%, 200%, 2000%, and up to infinity[.]” Id. at 8. Because the asserted claims had no upper limit on resistive change, id. at 8, Defendants proved by clear and convincing evidence that the specification was “insufficient to enable one of ordinary skill in the art to make and use the full scope” of the claims without undue experimentation, making the claims invalid. Id. at 18-19.

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Last week, in Magnetar Tech. Corp v. Six Flags Theme Parks, Inc., C.A. No. 07-127-LPS (D. Del. Feb. 18, 2011), Judge Stark denied a motion by some of the defendants to amend their complaint to add an antitrust counterclaim under the Section 2 of the Sherman Act. The opinion is brief and interesting. It explains the high bar for factual allegations when asserting an antitrust claim, and distinguishes such claims from the easier-to-prove inequitable conduct claims. Here, Judge Stark found that defendants had failed to meet that high bar, and denied the motion to amend.

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On February 11, 2011, a jury returned a defense verdict on all counts in CMH America LLC and Blue Leaf I.P., Inc. v. Kinze Manufacturing, Inc., C.A. No. 08-945-GMS. The jury found that defendant did not infringe plaintiffs’ patents and that the patents were not indefinite. However, the jury also found that the patents were invalid because all claims were anticipated and certain other claims were obvious.

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Judge Stark entered final judgment in Power Integrations, Inc. v. Fairchild Semiconductor International, Inc., C.A. No. 04-1371-LPS (D. Del. Feb. 3, 2011) earlier this month. Power Integrations won a $12.8 million dollar verdict for willful infringement by Fairchild Semiconductor of a number of patents and claims. The judgment issued as a “Corrected Final Judgment” after the original final judgment listed an incorrect post-judgment interest rate.

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Following the recent trend in this district, Judge Robinson denied a defendant’s motion to transfer litigation related to a licensing dispute, even where the current litigation is the “mirror image” of litigation pending in the Northern District California. Myriad Group A.G. v. Oracle America, Inc., C.A. No. 10-187-SLR, Memo. Order (D. Del. Feb. 4, 2011). The court found that the Jumara factors do not warrant transfer, particularly where the defendant is a Delaware corporation and “especially in this age of electronic discovery and the ever decreasing number of cases actually resolved by trial.” Id. at 5.

Myriad Group A.G. v. Oracle America, Inc., C.A. No. 10-187-SLR, Memo. Order (D. Del. Feb. 4, 2011).

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Save the Date: March 11, 2011
The United States District Court for the District of Delaware, the United States Bankruptcy Court for the District of Delaware and the Delaware Chapter of the Federal Bar Association will present a “Bankruptcy Litigation Advocacy Program” on March 11, 2011. The program will be held in the Auditorium of the State Office Building and will be free to all members of the Delaware Chapter of the Federal Bar Association.
More information, including registration information, will follow.

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In a case involving e-readers, Judge Robreno construed the following claim terms
– broadcast
– book, electronic book
– encrypting the selected electronic book
– decrypting the encrypted selected electronic book
– information that allows encryption and decryption of the electronic book and encryption and
decryption of the encryption and decryption keys
– key generator
– list of titles of available books
– associate registration system
– associate enrollment system
– compensation system
– online registration system
– referral processing system
– report generation system
Discovery Patent Holdings, LLC v. Amazon.com, Inc., C.A. 10-600-ER (D. Del. Feb. 4, 2011)

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