June 20, 2011

Judge Robinson: Motion to Consolidate Cases and Lift Stay DENIED

In Ricoh Company, Ltd. v. Oki Data Corporation, Civ. No. 09-695-SLR (D. Del. Jun. 9, 2011), Judge Robinson denied the plaintiffs' request to consolidate cases and lift stay.

The plaintiffs had represented that the asserted patents were "clearly related" to asserted patents in an earlier suit between the parties. In response, Judge Robinson noted that, even if the court were to assume that the plaintiffs' representations were correct, the court could not accommodate the plaintiffs' request to have additional time for discovery in the court's present 2012 trial calendar. Id. at 1. Judge Robinson also noted that consolidating cases would have turned a six-patent case into an eight-patent case, which would have required even more trial time. Id.

Judge Robinson then denied the plaintiffs' request to lift stay because the "plaintiffs intend to pursue its appeal of the ITC's adverse ruling to the Federal Circuit absent consolidation." Id. at 1-2.

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June 20, 2011

Judge Robinson: Motion to Transfer to N.D. Cal. DENIED

In Everglades Interactive, LLC v. Playdom, Inc., Civ. No. 10-902-SLR (D. Del. Jun. 8, 2011), Judge Robinson denied the defendants' motion to transfer the case from the District of Delaware to the Northern District of California.

The defendants argued, inter alia, that the Northern District of California was "the more convenient and appropriate venue" because Northern California was the principal place of business for the U.S. defendants as well as the plaintiff. Id. at 5. But after noting that all of the U.S. defendants were incorporated in Delaware, id. at 2, the court reiterated -- "consistent with its usual mantra" -- that defendants who choose to incorporate in Delaware "must also bear the burden of being eligible to be haled to Delaware for lawsuits[,]" id. at 6.

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June 17, 2011

Judge Robinson: Motion to Transfer ANDA Case Granted Where Identical Case Filed in SDNY

In Medicis Pharm. Corp. v. Nycomed US Inc., C.A. No. 10-1099-SLR (D. Del. June 16, 2011), the "plaintiff filed two identical actions against defendant" in the District of Delaware and the Southern District of New York. Id. at 2. The "defendant moved to transfer the instant action to the Southern District of New York[,]" and Judge Robinson granted this motion. Id. at 2. Although the court noted that "plaintiff's choice of forum is given paramount consideration," Judge Robinson stated that "the case at bar shares common questions of law and fact with the first [previously transferred] actions, which are now proceeding in the Southern District of New York." Id. at 4-5. "Thus, it is in the interest of judicial economy to transfer the current lawsuit to the Southern District of New York so that both courts may avoid redundant efforts and the possibility of inconsistent results." Id. at 5.

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June 13, 2011

Judge Robinson: Motion to Transfer DENIED

In Marvell International Ltd. v. Link_A_Media Devices Corp. , C.A. No. 10-869-SLR (D. Del. June 8, 2011), Judge Robinson recently denied defendant’s motion to transfer the action to the Northern District of California. Defendant argued that transfer was appropriate because its principal place of business was in California, the events surrounding the litigation arose outside Delaware, defendant was a regional corporation, relevant documents and non-party witnesses were in California, the court congestion in Delaware, and that plaintiff did not sue on its home turf. Id. at 2. Plaintiff disagreed that transfer was appropriate because defendant was a Delaware corporation, because Delaware court’s have expertise in patent litigation and because defendant has not specified any document or witness that cannot be produced in Delaware. Id. Judge Robinson noted that “plaintiff’s choice of forum is of paramount consideration” and defendant’s burden to prove that transfer is warranted remains unchanged even though plaintiff chose to sue in a forum other than its home turf. Id. at 3. Judge Robinson also noted that “because [defendant] is a Delaware corporation, it has no reason to complain about being sued in Delaware.” Id. at 4. Judge Robinson also found that defendant was an international company, rather than regional, evidenced by its offices around the globe. Id. Furthermore, the congestion of the court was a “non-issue”; and defendant’s argument about the location of discovery was not persuasive because “[i]n this electronic age, there are no substantial burdens associated with discovery or witness availability that support the need for transfer.” Id. at 5.

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June 7, 2011

Judge Sue L. Robinson: Motion for Reconsideration DENIED

Judge Robinson denied a motion for reconsideration of her November 18, 2010 opinion in Kenexa Brassring, Inc. v. Taleo Corporation because the motion was untimely and not effected by the change in law set forth in the Federal Circuit's opinion in Centillion Data Sys., LLC v. Qwest Commc'ns Int'l, Inc. C.A. No. 07-521-SLR, Memo. Order (D. Del. May 26, 2011). The Court found that plaintiff's motion was filed more than five months after her opinion in violation of Local Rule 7.1.5 which requires that motions for reargument be filed within 14 days "after the Court issues its opinion or decision." Id. at 2 (internal citations omitted).

The Court further found that plaintiff's motion failed on the merits. The Federal Circuit's opinion in the Centillion case dealth with "use" for purposes of infringement and found that for "use" to constitute infringement, "a party must put the invention into service . . ." and "use each and every element . . . of a claimed [system]." Id. at 2-3 (internal citations omitted). Here, defendant did not "use" the "entire claimed system" and therefore Centillion does not change the Court's analysis. Id. at 3.

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June 4, 2011

Judge Robinson: Accenture Patents Invalid After Bilski

Last week, Judge Robinson issued an opinion in Accenture Global Serv. v. Guidewire Software, Inc., C.A. No. 07-826-SLR (D. Del. May 31, 2011). The case involves patents directed towards the processing of insurance claims. The Court previously stayed the case pending the Supreme Court's decision in Bilski. Last week, Judge Robinson granted the motion for invalidity of the patents at issue because they are directed towards abstract and unpatentable ideas in light of the Supreme Court's decision in Bilski. According to the Court,

The court concludes that the '284 and '111 patents are directed to abstract and, therefore, unpatentable, methods and systems for generating file notes and tasks to be performed for insurance claims. . . . The patents are directed to concepts for organizing data rather than to specific devices or systems, and limiting the claims to the insurance industry does not specify the claims sufficiently to allow for their survival.
Id. at 12.

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May 25, 2011

Judge Robinson: Memorandum Order Clarifying Previous Claim Construction

In Oracle Corp. v. Parallel Networks, LLP, Civ. No. 06-414-SLR (D. Del. May 6, 2011), Judge Robinson issued a memorandum order that clarified the court’s construction of “dispatching said request to said page server[.]”

The court originally construed the language to mean “[a]nalyzing a request to make an informed selection of which page server should process the request based on a variety of information (both static and dynamic).” Id. at 1. But the parties questioned whether dispatching could be “based on static information, dynamic information, or both.” Id. Noting that the court’s original construction was “internally inconsistent[,]” the court clarified its construction to allow the claim to be satisfied by “[e]ither a variety of dynamic information about a page server or a variety of both static and dynamic information about a page server[.]” Id. at 2. The court also noted that both its original and clarified constructions excluded dispatchers that dispatch requests based on static information alone. Id. at 2-3.

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May 24, 2011

Judge Robinson: Motion for Reconsideration of Order Granting TRO DENIED

Today, Judge Robinson denied the defendants' motion for reconsideration of the Court's May 20, 2011 grant of a temporary restraining order in In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litigation, 09-MD-2118-SLR (D. Del. May 24, 2011). In denying the motion for reconsideration, Judge Robinson stated that in the context of a post-trial TRO, the "likelihood of success" factor is "simply . . . one of the four factors to be considered when granting or denying an injunction." Id. at 3. Thus, the plaintiffs were not required to show a likelihood of success on the merits in order to obtain a temporary restraining order. Id. Further, although it is true that the defendants "will suffer harm from the issuance of a TRO" because the defendants already launched their generic product, Judge Robinson found that the balance of harms still weighed in favor of the plaintiffs because "Mylan brought the harm on itself" by choosing to launch its generic before the plaintiffs exhausted their appeals. Id. at 4.

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May 24, 2011

Judge Robinson: Motion for TRO Pending Appeal in ANDA Case GRANTED

Judge Robinson recently granted the plaintiffs' motion for a temporary restraining order pending appeal in an ANDA case, enjoining the defendants "from manufacturing, using, offering to sell, or selling generic extended release cyclobenzaprine products" as long as "plaintiffs agree to seek an expedited appeal and remove their generic product from the market." In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litigation, 09-MD-2118-SLR (D. Del. May 20, 2011).

First, Judge Robinson found that "plaintiffs' success on appeal is just as likely as not," and therefore the "[likelihood of success] factor marginally supports a temporary restraining order." Id. at 6. Second, the Court stated that "[i]n every ANDA case there is a likelihood of irreparable harm for the name brand manufacturer as the generics have a ready-made market to flood as soon as they receive approval to release their products[,]" and therefore the "[irreparable harm] factor favors plaintiffs." Id. Third, Judge Robinson found that "[t]he harm to the defendants from a temporary restraining order is minimal[,]" and therefore the "[harm to defendants] factor favors plaintiffs" despite the fact that the defendants "claim that they have already launched their products[.]" Id. at 6. "Defendants bore the risk of a restraining order both from this court and the Federal Circuit." Id. at 7. Fourth, the Court found that "[t]he public interest factor is neutral[,]" stating that "[t]he public has both an interest in strong patent protection that encourages innovation as well as the ability to purchase inexpensive drugs." Id. at 7. Thus, Judge Robinson granted the temporary restraining order pending appeal as long as the plaintiffs agreed "to seek an expedited appeal and remove their generic product from the market." Id.

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May 23, 2011

Judge Sue L. Robinson: Presumption of Validity Instruction

Plaintiff Callaway Golf Company, argues that it was error for the Court "to remove from its final jury instructions language regarding a patent's presumption of validity." Callaway Golf Company v. Acushnet Company, C.A. No. 06-091-SLR, Memo. Op., at 15 (D. Del. April 21, 2011). Specifically, in this case, defendant's counsel argued during closing statements that the examiner spent minimal time on the large amount of references checked as reviewed during examination. Id. at 15-16. This argument was contrary to the Court's previous ruling that plaintiff could not "improper[ly] bolster[ ] the validity of the Sullivan patents by referring to the number of examiner considering those applications" or "speculate as to the extent to which such prior art was actually considered by the examiners..." Id. at 16 (internal citations omitted). The Court found that it did not commit legal error in excluding the instruction. Id. (Note: plaintiff did not object during the closing or address the statements made by defendant's counsel in its rebuttal argument.)

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