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Apple filed an objection to EON’s plan to present a technology tutorial through its expert consultant. Apple asserted that the consultant was not disclosed as an expert on whom EON intended to rely upon during claim constructions, as required by the Local Patent Rules. Apple also asserted that the disclosure, which came only two days before the tutorial, was prejudicial because Apple did not have sufficient time to learn about and/or test the consultant’s opinions and credentials.

EON opposed the objection on the ground that Apple already knew of the consultant because he was disclosed under the protective order as someone who would have access to technical information. EON also argued that the consultant did not need to be disclosed because he was not testifying in support of EON’s claim construction positions. EON also argued that it would be prejudiced if the consultant was disclosed since it would be too late for EON to use another expert or present the tutorial through its counsel.
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After a jury awarded the Trustees of Boston University (“BU”) a $9.3 million dollar one-time lump-sum payment from Epistar and a $4 million dollar one-time lump-sum payment from Everlight, the district court denied the defendants’ motions for judgment as a matter of law and/or a new trial, other than with respect to the issue of damages. On the damage issue, the district court granted a remittitur because the lump-sum damages awards were not supported by the evidence.

After the district court denied a motion for reconsideration, BU notified the district court that it elected to have a new trial on damages or, in the alternative, to permit an interlocutory appeal.
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Posted in: Damages
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In this patent infringement action, Apple filed a motion to add additional Acacia entities as plaintiffs in the action. Apple’s primary argue was that the Acacia entities were the alter egos of the plaintiff and that the plaintiff is undercapitalized, which would mean that Apple might be unable to collect attorney’s fees and costs it might be awarded against the plaintiff at the end of the litigation.
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In this patent infringement action, the defendant sought the production of documents that the plaintif, IOENGINGE, had provided to potential companies that could fund litigation. IOENGINGED claimed that the documents were protected by the work product doctrine. The defendant sought production of the withheld documents.

IOENGINE explained that the approximately 70 documents listed on the privilege log were prepared by its counsel and by the inventor of the patent-in-suit, Mr. McNulty, for litigation funders in anticipation of and during litigation.
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Posted in: Discovery
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In this patent infringement action, the defendants filed a motion in limine to exclude evidence of any claimed lost profits damages alleged by the plaintiff, the inventor of the patent-in-suit.
The defendants asserted that the plaintiff could not recover lost profits damages because he did not make or sell products covered by the patent-in-suit.

In support of their position, the defendants cited cases stating that only a plaintiff who sells the patented device may claim lost profits damages. See Poly-America, L.P. v. GSE Lining Tech., Inc., 383 F.3d 1303, 1311 (Fed. Cir. 2004). The defendants also cited cases showing that a plaintiff cannot claim as patent infringement damages the lost profits of a related corporation, arguing that the plaintiff could not recover the lost profits of Death Door Marine, Inc. (“DDM”) because DDM’s profits “flow inexorably” to the plaintiff.
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Posted in: Damages
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In this patent infringement action, the defendants filed a motion to strike an errata change to the deposition testimony of a witness, Joseph Tindall. The district court noted that if the errata were allowed, it would change an answer from “yes” to “no.” As a justification for the change, the witness contended he “did not understand the question and gave an incorrect response when [he] answered it ‘yes.'” In response, the defendants argued that the requested change was improper.
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Core Wireless Licensing (“Core Wireless”) filed a patent infringement action against LG Electronics, Inc. (“LG”). As the matter approached trial, both parties filed motions in limine. Core Wireless filed a motion to prevent LG from making disparaging remarks regarding the Patent and Trademark Office (“PTO”) to the jury during trial.

The district court agreed that such remarks would not be appropriate and stated that “LG may not disparage the PTO and its examiners, such as by arguing that examiners are overworked or that the PTO is prone to error.”
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Sociedad Espanola de Electromedicina Y Calidad, S.A. (Sedecal) filed a patent infringement action against Blue Ridge X-Ray Company, Inc. (Blue Ridge X-Ray), DRGEM USA, Inc. (DRGEM USA), and DRGEM Corporation (DRGEM Corp.), alleging infringement of Sedecal’s U.S. Patent No. 6,642,829 (“the ‘829 Patent”). After a jury returned a verdict finding that the Defendants had infringed the ‘829 Patent, the same jury awarded the Plaintiff $852,000 in damages against all three Defendants in a second trial and found that DRGEM USA, Inc. and DRGEM Corporation’s infringement was willful.

The district court then ordered supplemental briefing on the objective prong of the Seagate case since the jury verdict was rendered before the Supreme Court’s decision in Halo. While the matter was still under advisement, the Supreme Court issued its decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016). In Halo, the Supreme Court overruled Seagate, concluding that the Federal Circuit’s two-part inquiry was “unduly rigid, and it impermissibly encumbered the discretion of district courts.” Halo, 136 S. Ct. at 1932.
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The district court had previously granted a stay pending an inter partes reexamination by the United States Patent and Trademark Office (“PTO”) of U.S. Patent No. 6,797,454 (the “‘454 patent”). After the PTO affirmed the validity of claims 2-6, 15, and 16 of the ‘454 patent, the Federal Circuit unanimously affirmed the PTO’s decision.

Although a reexamination certificate had not yet been issued, the plaintiff argued that the stay should be lifted and further argued that the certificate had not yet been issued only because the defendant had filed a petition for certiorari with the United States Supreme Court. The plaintiff argued that given the extreme unlikelihood that the United States Supreme Court would grant certiorari in this matter, particularly in light of the Federal Circuit’s summary affirmance of the PTO’s decision, the stay be lifted now.
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The defendants produced documents in response to plaintiffs’ first set of requests for production and included in the production were five documents that the defendants were later claim were subject to attorney-client privilege. Before the defendants made that claim, however, the plaintiffs deposed a corporate designee of Defendants Musion Events Ltd. and Musion 3D Ltd. During that deposition the five documents in questions were marked as exhibits. For some of the documents, the deponent testified regarding the contents of the documents and even read portions of the documents into the record–all without objection as to privilege or work product.

Shortly after that deposition, the defendants’ counsel to plaintiffs’ counsel and requested a claw-back of the five documents pursuant to the parties’ protective order.
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