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In December 2010, Multimedia Patent Trust (“MPT”) filed a patent infringement action against a number of defendants asserting infringement of a number of patents. Although MPT asserted the 5,500,678 (the “‘678 patent”) against several defendants, as well as other patents against several defendants and Apple, it did not assert the ‘678 patent against Apple. Over a year and a half later and only five months before trial, MPT sought to amend its complaint to include the ‘678 patent against Apple. Apple opposed the motion.

The district court concluded that the motion was not timely based on the following facts, among others: “The record indicates that MPT waited over six months from when it determined that Apple “likely” infringed the ‘678 patent to bring the present motion to amend the complaint. . . . Specifically, MPT had access to Apple’s source code and developed a theory that the code infringes the ‘678 patent, MPT served supplemental infringement contentions on Apple alleging infringement of the ‘678 patent on May 1, 2012. . . . MPT then waited over one additional month to file the present motion to amend its complaint on June 7, 2012. . . . The total delay between MPT developing its theory of infringement and seeking leave to amend its complaint spans more that six months.”
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In this patent infringement action, the defendant, Faro Technologies (“Faro”), moved to exclude the plaintiff’s expert with respect to the expert’s opinion regarding the absence of acceptable non-infringing alternatives as a basis for lost profits. Faro moved to exclude on the basis that the plaintiff’s expert economist lacks the expertise to opine on Faro’s likely redesign to avoid infringing the patent-in-suit. The plaintiff’s expert relied on the expert report of another expert of plaintiff’, who specialized in computer science and electronics.

As the district court analyzed the motion, it explained that “‘[a]n expert may express and opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert.’ Williams v. Illinois, No. 10-8505, 2012 WL 2202981, at *2 (U.S. June 18, 2012). To be sure, Faro challenges Hager’s technical analysis of the external box option. However, when ‘experts rely on conflicting sets of facts, it is not the role of the trial court to evaluate the correctness of facts, it is not the role of the trial court to evaluate the correctness of facts underlying one expert’s testimony.’ Micro Chem., Inc. v. Lextron, Inc., 317 F. 3d 1387, 1392 (Fed. Cir. 2003).”
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In May 2012, the Complainants in this ITC proceeding, Standard Innovation (US) Corp. and Standard Innovation Corporation (“SIC”) filed a motion to terminate the Investigation in part with respect to U.S. Patent No. D605,779 (the “‘779 patent”). SIC filed the motion seeking to withdraw its allegations with respect to the ‘779 patent in order to streamline the investigation and to conserve the resources of the parties, the Administrative Law Judge, and the Commission. The Respondents opposed the motion.

In analyzing the motion, the Administrative Law Judge first considered the procedural basis for the motion: “A complaint can seek partial termination of an investigation by withdrawing asserted claims or asserted patents pursuant to Commission Rule 210.21(a)(1). See Certain Tool Handles, Tool Holders, Tool Sets, Components Therefore, Inv. No. 337-TA-483, Order No. 7 (Apr. 22, 2003) (granting motion for partial termination as to certain claims where complainant ‘determined not to proceed with the investigation as to [certain claims], on the ground that a reduction in the number of patent claims in a more expeditious manner and will also reduce the time and resources required from all of the parties and the administrative law judge to proceed with the investigation’). In the absence of extraordinary circumstances, such partial termination will be granted. Id. Moreover, while good cause need not be shown in support of a complainant’s voluntary request to withdraw patent claims from an investigation where withdrawal would serve to ensure resolution of the issues remaining in the investigation in an orderly fashion.’ Certain Data Storage Systems and Components Thereof, Inv. No. 337-TA-471, Order No. 21 (Oct. 8, 2002) (‘The withdrawal of 64 claims will narrow and focus the issues in this investigation and allow all parties to concentrate their efforts on matters about [which] there is true controversy.’)”
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SAP AG and SAP America (“SAP”) filed a motion for partial summary judgment against DataTern for failing to serve infringement contentions charting the patents-in-suit against SAP’s accused products. The district court’s order specified that the infringement contentions were required to be served on or before March 23, 2012.

In analyzing the motion for summary judgment, the district court noted that the deadline for DataTern to serve its infringement contentions was originally March 16, 2012 but was moved back to March 23, 2012 at the request of DataTern. DataTern admitted that it had not served infringement contentions in compliance with the district court’s order, but instead argued that the reason it had failed to do so was because SAP had failed to timely provide it with the source code necessary to create the contentions.
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Last December, the district court in the Northern District of California denied Apple’s motion for a preliminary injunction. Apple had moved for the preliminary injunction based on alleged infringement of three design patents and one utility patent. After the denial of the preliminary injunction motion, Apple appealed the order to the Federal Circuit. The Federal Circuit affirmed most of the district court’s order denying the preliminary injunction but remanded to the district court for further proceedings on one of the design patents. On remand, the Federal Circuit directed that the district court consider the balance of hardships and whether the public interest favored an injunction with respect to the one design patent.

The district court had found that Apple had established that the Samsung Galaxy Tab 10.1 likely infringed the design patent and that Apple was likely to suffer irreparable harm as a result of the infringing conduct. But the district court denied the motion because it found that the design patent was likely invalid based on several prior art references. The Federal Circuit upheld the findings of infringement and irreparable harm, but reversed the district court’s finding of invalidity as to one design patent.
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In this ongoing patent infringement battle between Samsung and Apple, both parties moves to strike the other’s expert reports. Because of the time sensitive nature of the motions to strike the experts due to the proximity of trial, the court did not address the motions in detail but did make some notable comments regarding the Daubert process.

The court began its analysis of the various motions to strike the expert reports by noting that the parties had challenged reports from no less than nineteen experts whose testimony covers eleven different patents. The court also explained that patent cases follow a familiar sequence that should not be different than other cases, at least in theory: “Patent cases in this district and many others follow a familiar sequence of steps to get at the theories and evidence that experts will present to the jury at trial. Complaints identify the patents-on-suit and perhaps the products. Answers identify the accused infringer’s general defenses. But only when the patent local rules requiring contentions kick in, or contention interrogatory responses are served, can parties begin to understand the particulars of their adversary’s case. Specific patent claims and disputed claim terms are designated. Infringement and invalidity charts are shared and amended as investigations and discovery reveal new evidence. Ultimately, expert reports are tendered and depositions provided, with perhaps a round of Daubert motions to clear the field of any last remaining brush barred under Fed. R. Civ. P. 702. Perfectly conceived and executed, expert trial testimony in a patent case should be no difference than in other cases: the testimony is supported by a report which in turn reliably applies the theories disclosed in the contentions to evidence disclosed during facts discovery.”
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The plaintiff filed several patent infringement actions against different defendants in the Eastern District of Texas. Because of the America Invents Act (“AIA”), the plaintiff filed the actions separately. The district court scheduled a combined scheduling conference for the separate cases and prior to the scheduling conference requested that the parties address procedures for consolidation given the administrative burdens placed on the parties and the courts due to the new joinder provisions of the AIA.

As the district court explained, “Congress has recently addressed the issue of joinder in patent cases in section 19 of the Leahy-Smith America Invents Act, which was signed into law in September 2011. . . . In particular, the new joinder provision provides that accused infringers may be joined in one action as defendants, or have their actions consolidate for trial, only if the allegation of infringement arise out of the same transaction, occurrence, or series of transactions or occurrences relating to the making, using, importing into the United States, offering for sale, or selling of the same accused product or process.”
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In this patent infringement action, the district court analyzed the parties’ disputes regarding whether a protective order should include a provision to restrict the transmission of center sensitive documents outside of the United States. The defendants requested a provision in the protective order that would preclude the transmission of highly confidential information outside of the United States and that would preclude the transmission of confidential information outside of the United States, except for disclosure to principals and employees of a party who agreed to be bound to the protective order and would also agree to submit to the district court’s jurisdiction.

Defendants’ requested the restriction due to the highly sensitive information:

Defendants argue that the above restrictions should be imposed because of the “extremely sensitive nature of the Protective Material, the heightened risk of an inadvertent or intentional discloser in a foreign jurisdiction beyond this Court’s reach and the myriad of jurisdictional and enforcement issues, practical and legal, that would arise in the event of a breach.” Specifically, Defendants take issue with Plaintiff’s plan to outsource litigation services to overseas vendors. In support of a complete bar on overseas transmission, Defendant point to a situation in an unrelated case before Judge Everingham in the District where a security breach occurred at an overseas third party vendor potentially causing sensitivity information to be leaked despite the existence of a protective order. See id. At 16 (citing Versata Software, Inc. v. SAP America, Inc., et al., Civ. No. 2:07-cv-153, Doc No. 572, slip op. at 13 (E.E. Tex Sept. 9, 2011)).
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Plaintiff Forest Laboratories, Inc. (“Forest”) moved to centralize their litigation in the District of Delaware. The litigation consisted of two action pending in the District of Delaware and the Northern District of Illinois. The defendants in the Delaware action did not oppose centralization, but one of the defendants suggested selection of the Northern District of Illinois as the transferee district. The defendants in the Northern District of Illinois opposed centralization and, alternatively, suggested selection of the Northern District of Illinois as the transferee forum.

Forest brought the actions in this litigation after various generic drug manufacturer defendants submitted Abbreviated New Drug Application seeking the approval of the Food and Drug Administration to make and sell generic versions of the patented Forest drug Bystolic before the drug’s patent expires. Bystolic reportedly contains a beta-adrenergic blocking agent, or “beta blocker,” called nebivolol hydrochloride and is indicated for the treatment of hypertension, to lower blood pressure. Alkem and Indchemie oppose centralization by arguing, inter alia, that (1) centralization is unnecessary Alkem and Indchemie oppose centralization by arguing, inter alia, that (1) centralization is unnecessary because only two actions are pending in two districts, and (2) the facts among the different actions will vary, given the difference proposed generic formulations at issue. We respectfully disagree with these arguments. Even though only two actions are pending, the Panel has recognized that “actions involving the validity of complex pharmaceutical patents and the entry of generic versions of the patent holder’s drugs are particularly well-suited for transfer under Section 1407.” In re Alfuzosin Hydrochloride Patent Litig., 560 F.Supp. 2d 1372, 1372 (J.P.M.L. 2008). Indeed, the Panel has frequently centralized litigation compromised of only two Hatch-Waxman Act cases.
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Parallel Networks had several lawsuits pending against different defendants in different district courts. The pending litigations consisted of nine actions, pending in the Eastern District of Texas and the District of Delaware. Four defendants sought centralization of the litigation in the Eastern District of Texas. Three of the District of Delaware defendants supported the centralization in its entirety and seven of the Eastern District of Texas defendants did so as well. The patent holder, Parallel Networks, opposed centralization and alternatively suggested selection of the Northern District of Texas as the transferee forum.

As the Panel explained, Parallel opposes centralization primarily because there3 are effectively only two actions involved in this litigation (the Eastern District of Texas actions have been consolidated in a single action) and, given the disparity in the progress of the actions, voluntary cooperative efforts among counsel are preferable to formal centralization. We respectfully disagree. Though the number of actins and districts involved in this litigation is indeed low, the litigation involves over 30 defendants. The Eastern District of Texas actions have progressed somewhat further than the Delaware action, but additional pretrial rulings (including claims construction rulings on the disputed terms) will be necessary to resolve Parallel’s claims against the over 20 defendants for whom summary judgment was denied. While we applaud and encourage any cooperative efforts undertaken by parties to this litigation, centralization under Section 1407 allows us to assign these actions to a single judge, who has already gained familiarity with the parties and the patent, who can ensure that pretrial proceedings are conducted in a streamlined manner leading to the just and expeditious resolution of all actions to the overall benefit of all parties and the courts. See In re Brimonidine Patent Litig. 507 F. Supp.2d 1381, 1382 (J.P.M.L. 2007)
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