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As the Apple v. Samsung case approached trial, Apple filed a motion to enforce prior court orders regarding the exclusion of certain Sony Designs. The motion filed by Apple presented a key issue for the court: whether documents regarding the influence of the “Sony style” on Apple’s design and development of the iPhone would be admissible at trial

This issue arose after the Magistrate Judge excluded portions of Samsung’s expert reports directed toward invalidity of Apple’s design patents at issue in the case because Samsung had not timely disclosed these theories during discovery. As explained by the district court, “[s]pecifically, Judge Grewal determined that Samsung had not timely amended its answers to contention interrogatories. Therefore, Judge Grewal struck portions of the Sherman Report that argued that Apple’s designs were anticipated or obvious in light of prior Sony designs. Specifically, Judge Grewal struck the following: Evidence that Apple produced in-house drawings and mock-ups based on the Sony design style. The Sherman Report referenced “Sony style CAD drawings.” “Apple’s Sony Style Design Mock-Ups,” Sony Ericsson W950,” and the “Sony Ericsson K800i” in support of Samsung’s contention that the D’677 Patent is invalid and that Apple’s design engineers were inspired by Sony.” Samsung appealed the ruling of the Magistrate Judge to the district court, and the district court subsequently denied Samsung’s motion.
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The patent holder, Genetic Technologies Limited (“GT”) sought centralization in the District of Colorado or, alternatively, in the Northern District of California of six actions involving the alleged infringement of a patent concerning methods of genetic testing. The six actions were pending in the Northern District of California, the District of Connecticut, the Middle District of North Carolina and three actions in the District of Delaware. All of the responding defendants opposed centralization.

The Panel found that centralization was not appropriate and would not serve the convenience of the parties and witnesses or further the just and efficient conduct of the litigation. Several factors weighed against centralization, particularly the patent holder’s litigation history. “Several factors weigh against centralization. The patent’s litigation history suggests that most actions that have been filed in the past several years have not required significant judicial attention. GT has filed at least nine actions over the course of the past nine years against at least 24 defendants, and only one case has proceeded to claim construction.” In addition, GT’s extensive licensing activities also weighed against centralization. “As in In re ArrivalStar, the litigation history of similar cases suggests that the advantages centralization typically affords – i.e., reducing duplicative discovery and motion practice, etc. – may not be relevant to most litigants. Further, GT has a fairly extensive licensing history, reportedly issuing licenses for the technology to over 60 entities.”
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Plaintiff Abaxis, Inc. (“Abaxis”) moved to exclude the testimony of Cepheid’s technical expert because the expert had no personal experience with the technology at issue and because the expert was offering opinions on commercial success and copying. The district court granted the motion in part and denied the motion in part.

As explained by the district court, “Abaxis does not dispute Dr .William’s qualifications as an expert. Rather, Abaxis contends that Dr. Williams has no personal experience with the designing or making of freeze-dried materials and lyophilization, rendering his opinions on these topics inadmissible under Rule 702 due to lack of proper foundation. Mot. 1, 3. According to Abaxis, Dr. William’s deposition revealed that he was so inexperienced in these matters that his testimony on such subjects would be unreliable. Id. At 3. Thus, Abaxis argues, any opinions of Dr. Williams that require knowledge of the design or manufacture of freeze-dried materials and lyophilization, including his technical evaluation of lyophilipzation or whether the prior art is enabling, are inadmissible under Daubert. Id.”
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The ongoing patent dispute between Apple and Samsung will have significant consequences for both companies but the impacts do not stop with just those two. During the jury trial, many third parties are likely to have data revealed about their own practices as the court has been reluctant to prohibit the public from viewing many, if not all, aspects of the trial.

IBM will be no exception. IBM filed a temporary restraining order in the Apple/Samsung patent dispute to block its confidential data from becoming public. Triggering the filing of IBM’s request for a temporary restraining order was Reuters’ attempt to publish the terms of a license agreement between IBM and Samsung. IBM appeared before the court requesting an order barring Reuters from publishing certain terms of the license agreement.
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The Respondent, Pandigital, Inc. (“Pandigital”) in this ITC investigation filed a motion for leave to file its motion for summary determination out of time. The proposed schedule in the matter required the filing of the summary determination motion by July 17, 2012. The deadline for filing documents with the ITC is 5:15 p.m. Eastern Time and Pandigial filed the summary determination motion on July 17th, but at 7:25 p.m. Eastern Time. Accordingly, the motion was considered filed on July 18, 2012, one day late.

Pandigital argued in its motion for leave to file out of time that the document was late because its counsel mistakenly believed that the filing deadline was 11:59 p.m. Eastern Time. As Pandigial’s counsel acknowledged, the ITC Handbook on Filing Procedures states:

When the Commission has imposed a deadline on the filing of a document, the Secretary will consider the document timely filed electronically only if the user has “clicked” the “confirm” button on the final confirmation page for electronic submission by 5:15:59 p.m., eastern time, on the day that the document is due to be filed, and received e-mail notification of receipt.
(ITC Handbook on filing Procedures at Section F(1).)
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Plaintiff filed a patent infringement action again AT&T Mobility LLC (“AT&T Mobility”) for “either literally or by equivalents, and either directly or by inducement or contribution” infringing the patent-in-suit. AT&T moved to dismiss.

AT&T made three arguments in its motion. First, AT&T argued that the plaintiff’s claims should be dismissed because they were plead conditionally. Second, AT&T asserted that the plaintiff had failed to adequately allege direct equivalent infringement. Third, AT&T contended that the plaintiff had failed to properly plead the indirect infringement claims.
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Defendants filed a motion to exclude the expert testimony of plaintiff’s expert on damages, including both lost profits and a reasonable royalty. The district court began its analysis by noting the Daubert standards for expert reports and then addressed the question of the reasonable royalty methodology used by plaintiff’s expert. The district court then noted it was troubled by the expert’s application of the hypothetical negotiation.

Explaining that the hypothetical negotiation began as only one factor under Georgia Pacific but as now evolved to be an umbrella over all the factors, the district court stated that neither party appeared to challenge the appropriateness or applicability of the hypothetical negotiation approach generally. The district court then reiterated the principles of a hypothetical negotiation as set forth by the Federal Circuit: “The methodology encompasses fantasy and flexibility ; fantasy because it requires a court to imagine what warring parties would have agreed to as willing negotiators; flexibility because it speaks of negotiations as of the time infringement began, yet permits and often requires a court to look to events and facts that occurred thereafter and that could not have been known to or predicted by the hypothesized negotiators. Fromson v. Western Litho-Plate & Supply Co., 853 F.2d 1568, 1575 (Fed. Cir. 1988).”
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In this patent infringement action, the plaintiff sued Sling Media over patents that relate to technology for distributed computer devices that communicate in a networked environment in a secure and efficient manner. The plaintiff served preliminary infringement contentions and Sling Media subsequently moved to strike those contentions.

Sling Media asserted that the contentions were deficient in five respects: “(1) Plaintiff has not set forth its contentions ‘separately for each opposing party’ as required by Local Rule 3-1; (2) Plaintiff has not disclosed each asserted subsection of 35 U.S.C. 271 for each claim that is allegedly infringed as required by Local Rule 3-1(a); (3) Plaintiff failed to identify accused instrumentalities ‘separately for each asserted claim’ and ‘as specifically as possible’ by ‘name or model number, if known’ as required by Local Rule 3-1(b); (4) Plaintiff failed to provide a claim chart ‘identifying specifically where each limitations of each asserted claim is found within each Accused Instrumentality’ as required by Local Rule 3-1(c); and (5) Plaintiff failed to identify and describe ‘the acts of the allegedly indirect infringer’ that allegedly render it liable for infringement of ‘each claim which is alleged to have been indirectly infringed’ as required by Local Rule 3-1(d).”
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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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