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As a preliminary matter, Judge Posner consolidated the six patent cases that were filed by Brandeis University against various defendants, finding that they involve a number of common issues of law and that judicial efficiency would be maximized by consolidation. “These six cases are hereby consolidated under 1:12-cv-01508, pursuant to Fed. P. 42(a). The parties agree that they involve a number of common issues of law, and I believe that judicial efficiency will be maximized by consolidation. I will consider in due course the defendants’ request for separate trials of issues, particularly damages, that vary significantly across the six cases.”
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In the ongoing struggle between Apple and Motorola over claims of patent infringement in just one of many battles that is taking place across the country over smart phones, both parties proposed claim constructions that were not particularly well-written for lay jurors.

After reviewing the claim construction briefs and stating that the briefs “well written and helpful,” the district court, Judge Posner, stated that he had a concern regarding the proposed claim constructions.
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The district court had previously stricken certain parts of Oracle’s damage expert report on two separate occasions. First, the district court struck Oracle’s expert report for failing to apportion the value of the asserted claims and instead using the total value of Java and Android in calculating damages. Second, the district court partially excluded Oracle’s expert’s revised report for using a flawed apportionment methodology. In the new report, Oracle’s expert set forth a new apportionment theory, which Google moved to strike again.

The district court summarized the third report as follows: ” First, Dr. Cockburn starts with Sun’s February 2006 demand of $99 million to defendant Google Inc. Second, he upwardly adjusts by $557 million to account for lost convoyed sales Sun projected to make through its licensing partnership with Google. Third, he adds $28 million by removing a revenue-sharing cap, resulting in a subtotal of $684 million. This is the pie he then apportions between the intellectual property in suit and the intellectual property not in suit. Fourth, he allocates part of this number to the patents and copyrights in suit, using two alternative methodologies — the so-called “group and value” and “independent significance” approaches (Rpt ΒΆΒΆ 37-68). Based on these alternative apportionment methodologies, reasonable royalties for patents and copyrights in suit, through the end of 2011, are (1) between $70 and $224 million under the group-and-value approach, and (2) at least $171 million under the independent-significance approach. Fifth, he downwardly adjusts for extraterritorial infringement, failure to mark, and non-accused devices. With all the downward adjustments subtracted, Dr. Cockburn calculates patent damages to be between $18 and $57 million, and a copyright lost license fee to be between $35 and $112 million.”
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Cambrian Science (“Cambrian”) filed a second amended complaint that alleged patent infringement of U.S. Patent No. 6,777,312 (the “‘312 Patent”). The second amended complaint alleged infringement against several defendants, certain of which were labeled by the district court as “Customer Defendants.” As to the Customer Defendants, Cambrian asserted that they infringed the ‘312 Patent directly by making, using, selling or offering to sell certain systems. The second amended complaint also alleged claims for contributing and inducing infringement.
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On summary judgment, the district court determined that the defendants directly infringed all patents at issue in the lawsuit. The district court subsequently conduct a bench trial on issues of willfulness and on defendants’ equitable defenses, particularly whether the defenses of laches and equitable estoppel provided a defense to the finding of direct infringement.

The district court first focused on the issue of willful infringement and stated the two-prong test for willfulness. “To establish willful infringement, a patentee must satisfy a two-pronged test. In re Seagate Tech., LLC, 497 F.3d 1360, 1371 (Fed. Cir. 2007). First, the patentee must “show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.” Id. In analyzing this prong, “[t]he state of mind of the accused infringer is not relevant.” Id. Second, and only after “[the objective prong] is satisfied, the patentee must demonstrate that this objectively-defined risk (determined by the record developed in the infringement proceeding) was either known or so obvious that it should have been known to the accused infringer.” Id.”
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Plaintiff moved to compel the production of documents that were listed on the defendants’ privilege logs. The district court explained the disputed documents as follows: “The disputed documents at issue were either authored by Ablation Frontiers, Inc.’s (“AFI”) outside counsel for AFI, or Medtronic’s outside counsel for Medtronic. The documents were subsequently turned over to each respective party by the other during Medtronic’s negotiations to acquire all of AFI’s products and related intellectual property.”
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Interwoven moved to stay all proceedings pending the outcome of an ex parte reexamination of the two patents-in-suit. Interwoven asserted that a stay was warranted because the defendant appeared unprepared to litigate and a reexamination would likely modify the issues in the case, with no undue burden to the defendant. The defendant, Vertical, opposed the motion, arguing that a stay would impose an unreasonable delay and that the stay request was a dilatory tactic that would prejudice the defendant, as the alleged infringement would continue while the stay was in effect.

Vertical had filed a patent infringement action against Microsoft Corporation in the Eastern District of Texas. After it settled with Microsoft, Vertical told Interwoven that it believed Interwoven was infringing its patents. After negotiations failed, Interwoven filed the declaratory judgment action in the Northern District of California. During the litigation, the parties began discovery, briefed claim construction issues and participated in the Markman hearing. The district court then issued its claim construction ruling, which largely rejected Interwoven’s positions. Interwoven then filed its ex parte request for reexamination and moved to stay the litigation that it had initiated.
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Plaintiff NetAirus Technologies (“NetAirus”) contended that Apple was infringing U.S. Patent No, 7,103,380 (the “‘380 Patent”), which pertains to a method in which a handset device communicates wirelessly over both local area networks and wide area networks. NetAirus claimed that the iPhone 3G and later models infringed the ‘380 Patent by switching between a cellular data network and local Wi-Fi hotspots. Apple moved for summary judgment contending that the ‘380 Patent was invalid.
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Plaintiff Schering Corp. (“Schering”) filed a patent infringement action against Apotex Inc. (“Apotex”). Schering brought a motion contending that Apotex spoliated relevant evidence. The motion was based on the omission of allegedly relevant evidence from Apotex’ expert report. The expert report was served in October 2011 and Schering notified Apotex of the alleged spoliation a few days after the report was served. Apotex responded to the letter and stated that it had no other additional information to provide because the expert did not save the slides that he analyzed.

Schering did not bring the alleged spoliation to the court’s attention for several months. The court found that this delay was significant and that Schering had not adequately explained the delay. “Schering fails to adequately explain why it waited for months, and until the eve of trial, to bring this alleged spoliation to the attention of the Court.”
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In two separate actions, Robocast sued Apple and Microsoft for patent infringement. Apple responded by filing a motion to transfer and Microsoft subsequently filed a similar motion to transfer. Both complaints are centered on U.S. Patent No. 7,155,451 (the “‘451 Patent”), which is directed toward an “Automated Browsing System for Publishers and Users on Networks Serving Internet and Remote Devices,” which was invented by the president of Robocast. Robocast accused AppleTV, Front Row, iTunes, Bing and Windows Vista of infringing the patent.
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