February 2017 Archives

District Court Denies Request to Change Expert Date Based on Change in Defense Counsel

February 21, 2017

Plaintiff Genes Industry, Inc. ("Genes") filed a patent infringement action against Defendant Custom Blinds and Components, Inc. ("Custom"). The patent discloses a winding wheel for use on window coverings. Custom filed a motion to continue its expert report deadlines from November 28, 2016 to February 10, 2017, and to continue the expert discovery cut-off date from December 16, 2016 to May 17, 2017.

In reviewing the request, the district court noted that "Defendant retained a new counsel way back in early November and the Court ordered the attorney substitution on November 17, 2016. This was 11 days before Defendant's expert reports were due. Defendant's counsel states that it took significant time to review the case after receiving the file on November 19, 2016. For some reason, Defendant's counsel waited until just two days before Defendant's expert reports were due before attempting to enter a stipulation with Plaintiff's counsel to extend expert report deadlines. Plaintiff's counsel declined this attempt because the Court's previous order granting an extension of expert report deadlines had stated in capital letters that 'no further continuances [would] be granted without a further very strong showing of good cause.'"

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District Court Stays Case Pending Inter Partes Review After Non-Petitioning Defendant Agrees to be Bound by Estoppel Provisions

February 14, 2017

In a previous order, the district court granted a motion to stay pending Inter Partes Review ("IPR") but deferred ruling on the Motion to Stay with respect to EMC Corporation "until EMC Corporation has filed a Notice with the Court indicating whether it is bound by the statutory estoppel provisions of 35 U.S.C. § 315(e)."

Thereafter, EMC filed a Notice stating "if the Court stays the above-captioned litigation pending resolution of the inter partes reviews filed on the asserted patents then EMC agrees to be bound by the full statutory estoppel provisions of 35 U.S.C. § 315."

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District Court Excludes Damage Expert for Failure to Apportion But Gives Expert One More Opportunity to Supplement Report

February 7, 2017

In this patent infringement action, Plaid sought to exclude the entirety of the plaintiff's damage expert's, Robinson's, reasonable royalty analysis as based on an apportionment "plucked out of thin air." Yodlee opposed the motion and asserted that its apportionment methodology was justified by the facts of the case.

The district court began its analysis by noting that "[Ii infringement is shown, the jury will need to 'apportion the defendant's profits and the patentee's damages between the patented feature and the unpatented features using reliable and tangible evidence.' Ericsson, Inc. v. D-Link Sys., Inc., 773 F.3d 1201, 1226 (Fed. Cir. 2014) (internal quotation marks omitted). 'The essential requirement is that the ultimate reasonable royalty award must be based on the incremental value that the patented invention adds to the end product.' Id."

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