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Judge Robinson grants motion for summary judgment of no remedies.

Judge Sue L. Robinson recently granted a defendant’s motion for summary judgment of no remedies.  Rosebud LMS, Inc. d/b/a Rosebud PLM v. Adobe Systems Inc., Civ. No. 14-194-SLR (D. Del. Feb. 5, 2015).  Because it was undisputed that the plaintiff’s patent issued after the defendant discontinued its accused product, the Court explained that the only remedies potentially available were provisional remedies under 35 U.S.C. § 154(d), based on the publication of the patent application.  Id. at 3-4.  Here, however, Judge Robinson found that the plaintiff failed to prove that the defendant had actual notice of the published patent application.  Specifically, the Court rejected the argument that the defendant had an affirmative duty to search patent applications because of the parties’ litigation history.  Id. at 6.  The Court also found that the other purported evidence of actual notice showed, at best, constructive notice, which was not sufficient for purposes of awarding provision remedies under § 154(d).  Id. at 6-7.

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