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Innovatio IP Ventures, LLC (“Innovatio”) filed patent infringement actions against various hotels, coffee shops, restaurants and supermarkets for the use of wireless Internet technology located throughout the United States. Innovatio filed a motion for entry of a protocol for collection of electronic evidence and a preliminary ruling on the admissibility of the collected evidence.

As explained by the district court, “Innovatio has been using commercially-available Wi-Fi network analyzers to collect information about the Wireless Network Users’ allegedly infringing Wi-Fi networks. (Dkt. No. 329, at 2.) That process, which is known in the industry as ‘sniffing,’ requires Innovatio’s technicians to enter the Wireless Network Users’ premises during business hours with a laptop computer and a Riverbed AirPcap Nx packet capture adapter (or a similar device). (Id.) The packet capture adapter can intercept data packets that are traveling wirelessly between the Wi-Fi router provided by the Wireless Network Users and any devices that may be communicating with it, such as a customer’s laptop, smartphone, or tablet computer. Innovatio then uses Wireshark network packet analyzer software to analyze the data packets, revealing information about the configuration of the network and the devices in the network. The data packets also include any substantive information that customers using the Wi-Fi network may have been transmitting during the interception of the data packets, including e-mails, pictures, videos, passwords, financial information, private documents, and anything else a customer could transmit to the internet. Innovatio contends that the information it collects will assist in proving its infringement claims.”
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Intendis, Inc. (“Intendis”) and Dow Pharmaceutical Sciences, Inc. (“Dow”) filed a patent infringement action against River’s Edge Pharmaceuticals, LLC (“River’s Edge”). Dow owns the patent-in-suit and Intendis is the exclusive licensee. According to the district court, “[t]he ‘383 patent is listed by the Food and Drug Administration (FDA) as covering Desonate®, which is a topical aqueous gel composition indicated for the treatment of skin disorders such as acne. Intendis is the owner of an approved New Drug Application (NDA) for Desonate®.”

River’s Edge submitted an Abbreviated New Drug Application (“ANDA”), which sought to engage in the commercial manufacture, use, sale, offer for sale or importation of a generic gel based on the listed drug Desonate. River’s Edge moved for judgment on the pleadings. River’s Edge asserted that there could be no literal infringement as a matter of law because the infringement allegations were expressly contradicted by the patent specification attached to the complaint. Intendis and Dow contended, on the other hand that at this stage, the relevant inquiry should not focus on assessing the merits of the case but instead should focus on whether the plaintiff is entitled to reach the discovery stage of litigation in order to seek evidence to support their claim.
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In this patent infringement action between Eon Corp. (“Eon”) and Alcatel-Lucent (“ALU”), among others, Eon served patent infringement contentions, which were repeatedly challenged by ALU and other defendants. As part of this process, Eon filed a further amended complaint against ALU alleging indirect infringement. In this amended complaint, ALU did not include any products by name. Eon subsequently filed a motion seeking leave to amend its infringement contentions against ALU to include seventy-six products, seventy-two of which were not included in its initial infringement contentions.

When ALU moved to strike these contentions, the court was not persuaded that the original proposed infringement contentions satisfied Local Patent Rule 3-1 because although they named infringing networks they did not show how ALU’s accused products were used in those particular networks. As a result, the court ordered Eon to modify its infringement contentions to show how particular ALU products were used in an infringing network. Eon subsequently served amended infringement contentions against ALU pursuant to the court’s order, which included more than twenty new ALU products that were not disclosed in the prior amended infringement contentions. The court then ordered the removal of the new ALU products, which Eon did a few months later.
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Plaintiff Micro Enhanced Technology Inc. (“Micro”) filed a patent infringement action against Videx, Inc., accusing Videx of infringing six patents. Micro subsequently amended its complaint to add two defendants, Verizon Wireless (“Verizon”) and ITC Holdings Corp. (“ITC”), both of whom are customers of Videx. Verizon filed a motion to dismiss and a motion to sever and stay.

As the district court explained, Fed.R.Civ.P. 21 “gives the Court discretion to sever any claim against any party” and that “[c]onsistent with that rule, courts have recognized that when a patentee sues both the manufacturer and its customers, ‘litigation against or brought by the manufacturer of infringing goods takes precedence over a suit by the patent owner against customers of the manufacturer.’ Speed Spectrum Screening LLC v. Eastman Kodak Co., 657 F.3d 1349, 1357 (Fed. Cir. 2011).” The district court further explained that this doctrine is referred to as the “customer suit exception” and “is based on the recognition that a manufacturer is presumed to have a ‘greater interest in defending its actions against charges of patent infringement [than a customer may]; and to guard against the possibility of abuse.’ Kahn v. Gen. Motors Corp., 899 F.2d 1078, 1081 (Fed. Cir. 1989); see also Spread Spectrum Screening, LLC v. Eastman Kodak Co., 2010 WL 3516106, at *2-3 (N.D. Sept. 1, 2010) (severing customer defendants and transferring claims against manufacturer under the notion that the customers were ‘peripheral’ to the infringement allegations).” The district court also noted that district courts have broad discretion to control their dockets by staying proceedings, as long as the stay is not indefinite or otherwise excessive.
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Plaintiff Oasis Research, LLC (“Oasis”) filed a patent infringement action against twelve defendants alleging infringement of four patents. Generally, the patents claim methods for allowing a home computer user to remotely connect to an online service system for external data and program storage in addition to increased processing capabilities in exchange for a fee. Oasis claimed that the defendants infringed the patents-in-suit by providing online backup and storage services.

Defendants asserted that joinder was not proper because Oasis had joined different defendants with different products. In May 2011, the court entered a report and recommendation denying the defendants’ motion to dismiss for misjoinder, severance and transfer. The district court adopted the recommendation. After a petition for a writ of mandamus to the Federal Circuit, the Federal Circuit granted the writ, finding that the district court had applied the wrong test and remanded for the district court to apply the correct test: “Since the district court here applied an incorrect test, the district court’s ruling must be set aside, and the issues of severance and joinder considered under the proper standard. We therefore grant the petition to the limited extent that we vacate the district court’s order denying the motions to sever and transfer, and direct the district court to reconsider those motions in light of the correct test.”
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The epic patent battle between Apple and Samsung has proved taxing not only for the lawyers and the parties in the case, but also for the judicial system as well. In a recent decision by the Magistrate Judge handling many of the discovery issues in the case, the court pointed out just how unusual–and difficult–the case has been for the court system and how the case has burdened the court and impacted the court’s limited resources.

In the middle of the trial, Samsung filed a motion for an adverse jury instruction against Apple. The Magistrate Judge began the order denying the instruction by pointing out that the parties to any case have an obligation to follow the schedule so that the court is able to control its docket, not just for one case, but all of its cases in an orderly fashion: “Before this case the undersigned thought the proposition unremarkable that courts set schedules and parties follow them. This basic division reflects a division not of power, but responsibility, for in setting schedules courts are responsible not only to the parties in one case but to parties in all cases. And the undeniable fact is that because they allow the court to allocate time and other resources in an orderly fashion, schedules and their deadlines in one case can and do impact those in every other case on a judge’s docket.”
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Google moved to intervene as a respondent in the investigation brought by Nokia against HTC. HTC supported Google’s intervention and Nokia opposed it. Google asserted that it should be permitted to intervene as a respondent to defend its products and services and to protect its interest in the investigation. As part of this argument, Google asserted that its intervention would aid in the adjudication of the issues in five of the nine patents because the products or services accused of infringement are proprietary Android applications that are developed by Google and supplied by HTC.

In supporting Google’s intervention, HTC asserted that Google is uniquely situated to provide information that is necessary for the efficient resolution of the investigation. In support of this position, HTC pointed out that Nokia’s claim charts rely on features of Gmail, Google Calendar and other aspects of the Android operating system. HTC then claimed that Google’s intervention would eliminate the need for complicated third party discovery regarding these features of Android.
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As the patent trial between Samsung and Apple continues, Samsung moved to preclude Apple from either eliciting testimony or attorney comment on Samsung’s failure to call certain witnesses to testify at trial. In its motion, Samsung asserted that permitting such testimony would be prejudicial and would be inappropriate because the district court limited the parties to a 25-hour trial time limit.

In analyzing Samsung’s request, the district court noted that “Samsung has not identified, any case law supporting Samsung’s requested blanket prohibition on testimony or attorney comment regarding either party’s failure to call particular witnesses.” Contrary to Samsung’s position, the district court found that “[c]ounsel may comment to the jury on the failure to call a witness or the judge may instruct on the presumption.” Food Machinery & Chem. Corp. v. Meader, 294 F.2d 377, 384 (9th Cir. 1961). Furthermore, both parties have been subject to the same time limit and other legal and procedural constraints of which Samsung complains, and both parties are equally free to point out the alleged deficiencies in the opposing party’s case, to the extent permitted by law. In fact, during cross-examination of Apple’s experts, Samsung asked why Apple’s experts had not communicated directly with certain Apple inventors, who are still employed by Apple and available. Thus, the jury could have drawn inferences about these inventors’ ability to testify and their absence at trial.”
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The plaintiff filed a patent infringement action against several companies, including Apple, asserting infringement of its 6,502,135 patent (the “‘135 patent”). The ‘135 patent claims systems and methods that create a VPN based on a DNS request. The plaintiff claimed that Apple attempted to patent identical ideas in its own patent application, application no. 10/940,225 (the “‘225 application”). During discovery, the plaintiff noticed the deposition of Mr. Christopher Allie, an engineering manager at Apple who worked on Apple’s VPN on Demand and who is listed as a named inventor on the ‘225 application.

During the deposition, Mr. Allie testified that he had no knowledge of the ‘135 patent and had never seen it before. The witness was then asked to review claim 1 of the patent and, after doing so, plaintiff’s counsel asked him if he still thought Apple was the first to come up with the idea of determining whether to establish a VPN based on a domain name request. To that question, Apple’s counsel objected–with a speaking objection–stating that the witness should be given an opportunity to review and analyze the patent before answering. The witness then testified that he could not state whether there was overlap between the two patents.
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MyKey Technology Inc. initiated an ITC Investigation against several respondents, including Guidance Software, Digital Intelligence, Yec Co., Ltd.. and Cru Acquisitions. The parties served initial reports, rebuttal reports and supplemental reports in the Investigation. The procedural schedule only provided for initial expert reports and rebuttal expert reports. Nonetheless, the parties served supplemental expert reports and did not seek leave of the Administrative Law Judge before doing so.
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