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During the trial, the plaintiff, Arthrex, requested that the district court construe the term “proximal end” in certain of the patent-in-suit, U.S. Patent No. 8,821,541 (“the ‘541 patent”). The district court determined that the request for a claim construction was way too late.

The district court began by noting that “Arthrex did not request construction of this term during claim construction, which occurred more than six months ago. Rather, Arthrex requested that the Court construe the term during the Jury Charge Conference– the night before the last day of a five-day trial. ” As explained by the district court, Arthrex based its request on trial testimony from Dr. Alexander Slocum, Defendants’ infringement expert, concerning the plain and ordinary meaning of what he understood “proximal end” to mean. Arthrex then insisted that the district court was required to construe the term because Dr. Slocum’s testimony raised a dispute regarding its meaning. See O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008) (“When the parties raise an actual dispute regarding the proper scope of these claims, the court, not the jury, must resolve that dispute.”).
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Tech Pharmacy filed a patent infringement action against Defendant Alixa Rx LLC and Defendant Golden Gate National Senior Care LLC d/b/a Golden LivingCenters (collectively, “Defendants”). Tech Pharmacy subsequently filed its Second Amended Complaint to add the Fillmore Defendants as named defendants with respect to the misappropriation of trade secret, breach of contract, and related state tort claims.

In response, the Fillmore Defendants asserted counterclaims for declaratory judgment of invalidity, non-infringement, and inequitable conduct directed at Tech Pharmacy’s patents. Tech Pharmacy then filed a motion to dismiss the declaratory judgment claims for lack of subject matter jurisdiction because Tech Pharmacy had not asserted the patent claims against the Fillmore Defendants.
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The Defendants filed a motion to strike the Plaintiff’s infringement contentions, including their contentions under the doctrine of equivalents (“DOE”), for failing to comply with the Local Patent Rules (“P.R.”). The Defendants argued that the Plaintiff’s contentions did not comply with P.R. 3-1(d) because the Plaintiff made “impermissible blanket assertions regarding infringement under the doctrine of equivalents.”

P.R. 3-1(d) states that the infringement contentions must disclose”[w]hether each element of each asserted claim is claimed to be literally present or present under the doctrine of equivalents in the Accused Instrumentality.”
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In this discovery dispute in a patent infringement action, Frontgate contended that Balsam Brands, Inc. (“Balsam”) failed to adequately respond to an interrogatory seeking information about Balsam’s damages. As explained by the district court, Balsam’s response stated that it: (1) “intends to seek lost profits on the 1,662 Flip Trees that it did not sell during the 2015 Christmas season”; and (2) “intends to seek a reasonable royalty on all Inversion Trees sold by Defendants for which lost profits are not available.” Balsam further responded that “historical data on Balsam’s cost, sales, inventory, and pricing” was included in materials produced.
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Posted in: Damages
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Plaintiff, D Now, Inc. (D-Now), obtained an exclusive license to U.S. Patent No. 8,795,020, which claims a bubble blowing tube. D Now filed a patent infringement action against defendants TPF Toys Limited and TPF Toys LLC (collectively “TPF”). As explained by the district court, “[b]oth parties sell the bubble blowing tube in bouncing bubble kits, wherein the consumer can blow a bubble with the tube then use either gloves (in D Now’s product) or paddles (TPF’s product) to bounce the bubble.”
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Defendant Baker Hughes Incorporated (“Baker Hughes”) filed five inter partes review (“IPR”) proceedings before the Patent Trial and Appeal Board (“PTAB”) asserting that the plaintiff Lubrizol’s patents were invalid because of obviousness. Baker Hughes and a third-party, Flowchem LLC (“Flowchem”) had previously produced documents in the underlying case that they designated “Confidential” or “Highly Confidential” under the district court’s Protective Order.

Lubrizol asserted that the confidential documents would refute Baker Hughes’s obviousness argument in the IPR proceedings and sought a modification of the district court’s Protective Order to allow Lubrizol to use the confidential documents in the IPR proceedings. In particular, Lubrizol asserted that the Baker Hughes documents would reveal evidence of copying, which would refute any contention that the patents were obvious.
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Dexcel filed a motion to compel contending that Takeda has refused to provide any fact discovery concerning Takeda’s methods for particle size analysis used in prior litigations or underlying the data in the patents-in-suit. Dexcel asserted “that this information was relevant because it targets whether Takeda’s position as to test methods to assess the literal infringement of Takeda’s particle size limitations by Dexcel’s product is consistent with positions Takeda has taken in the past.”

Takeda objected arguing that any discovery into test methods for particle size that were employed in prior litigations “implicates the confidential and highly confidential information” of the defendants in those suits. Takeda also contended that the Discovery Confidentiality Orders entered in those matters prohibit it from disclosing information designated confidential by those defendants.
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Posted in: Discovery
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Plaintiff Synopsys, Inc. (“Synopsys”) filed a motion to compel defendant, ATopTech, to respond to interrogatories. ATopTech opposed the motion by arguing that it had already answered Synopsys’s Set One, Interrogatory Nos. 1-5, which contained at least 21 discrete subparts. ATopTech therefore contended that it was “not required to respond to any of the interrogatories in Set Two, Interrogatory Nos. 6-25, because the Set Two interrogatories also contain discrete subparts, and even responding to Interrogatory No. 6 would require ATopTech to exceed the 25 interrogatory limit under Federal Rule of Civil Procedure 33(a)(1).”

The district court began its analysis by noting that “[p]atent cases present unique challenges with respect to the application of Rule 33’s numerical limit on interrogatories. A circuit judge for the Federal Circuit, sitting as the district court in a patent case, recently devoted an entire opinion to the issue of what constitutes a ‘discrete subpart’ for purposes of Rule 33(a)(1). See Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co., 315 F.R.D. 191 (E.D. Tex. 2016).
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Posted in: Discovery
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The plaintiff, Chrimar Systems Inc. and Chrimar (“Chrimar”) filed a motion to compel an additional deposition of Defendant D-Link Systems, Inc.’s (“D-Link”) corporate representative, William C. Brown. Chrimar previously took the deposition of D-Link’s corporate representative, pursuant to Federal Rule of Civil Procedure 30(b)(6).

After the deposition concluded, Mr. Brown supplied an errata sheet, correcting numerous portions of his deposition testimony pursuant to Federal Rule of Civil Procedure 30(e). In its motion, Chrimar contends that over 60 answers were materially altered and several answers were changed from “yes” to “no.” As a result, Chrimar moved the district court to compel “Mr. Brown for a second deposition in Dallas, Texas regarding the changes represented in his errata sheet.”
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During the pretrial conference, the Plaintiff Arthrex(“Arthrex”) told the district court that it may be able to narrow its case once the district court resolved certain pending motions for summary judgment. Shortly after the pretrial conference, the district court informed the parties it would deny the parties’ motions for summary judgment and that Arthrex had “raised triable issues of infringement that are sufficient overcome summary judgment.”

The district court also stated that it would deny both motions and that a detailed reason for the denials would follow in a separate order.
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