Articles Posted in District Courts

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Taser International, Inc. (“Taser’) proceeded to trial on its patent infringement action against Karbon Arms, LLC (“Karbon Arms”). After expert reports and with the trial approaching, Taser filed a motion to exclude the expert testimony Val DiEuliis, one of Karbon Arms’ experts, regarding electrophysiology.

As explained by Taser, Dr. DiEuliis offered opinions on certain limitations of the patent-in-suit (United States Patent 7,800,885), including: “compliance signals of the group differ in intensity of pain compliance,” “compliance signals of the group differ in intensity of skeletal muscle contraction,” and “effective duration.”
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Otto Bock HealthCare LP (“Otto Bock”) filed a patent infringement against Defendants Össur hf and Össur Americas, Inc. (together, “Össur”). Otto Bock alleged that a number of Össur’s infringed four claims of United States Patent No. 6,726,726 (the ” ‘726 Patent”). Otto Bock moved for a preliminary injunction, seeking to enjoin Össur from infringing the ‘726 Patent, and the Court denied Otto Bock’s, holding that Otto Bock was unlikely to prove that the accused combination of products satisfied the ‘726 Patent’s “means for sealing” and “means for maintaining a vacuum” limitations.

After the preliminary injunction was denied, Össur petitioned the U.S. Patent and Trademark Office (the “Patent Office”) to institute an inter partes review of 19 claims of the ‘726 Patent. Össur’s petition asserted that certain claims of the ‘726 Patent are invalid because they would have been obvious to a person of ordinary skill in the art. Össur’s petition did not seek review of two of the four independent claims at issue in the case. Össur’s moved to stay the district court case pending the inter partes review. At time of the motion to stay, the Patent Office had not yet decided whether to institute an inter partes review.
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Kimberly-Clark Worldwide, Inc. (“Kimberly-Clark) filed a patent infringement action against First Quality Baby Products, LLC (“First Quality”) over a variety of patents relating to disposable absorbent products, such as diapers and incontinence products, including U.S. Patent No. 5,147,343 (the “Kellenberger Patent”), which relates to an absorbent composite or core for use in disposable absorbent products. As explained by the district court, “[t]he absorbent core consists of a matrix of fibers with superabsorbant polymer (“SAP”) dispersed between the pores of the matrix. An SAP is a chemical compound capable of absorbing ten or more times its own weight in fluid-a useful property for products designed to absorb and retain fluids.”

As one of its defenses, First Quality argued that the Kellenberger Patent was invalid for obviousness. Defendants had previously moved for summary judgment on the of obviousness and had argued in support of that motion that the only feature distinguishing the Kellenberger Patent from the prior art was its use of a new SAP in the absorbent core to replace an older, less effective SAP. “In short, Defendants argued that Plaintiff simply took a new SAP (invented by a third party) and included it in a preexisting diaper design, and that it was obvious to do so. By memorandum issued July 8, 2013, the court denied Defendants’ motion after finding genuine disputes of material fact as to whether it would have been obvious to substitute the new SAP.”
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Rembrandt Social Media, LP (“Rembrandt”) filed a patent infringement action against Facebook alleging that Facebook infringed two of its patents, U.S. Patent No. 6,415,316 (“the ‘316 patent) and U.S. Patent No. 6,289,362 (“the ‘362 patent”).In 2009, Facebook introduced two new features to its website called BigPipe and Audience Symbol. Rembrandt’s expert admitted that the alleged infringement of the patents-in-suit is because of to the introduction of these two features in 2009. Rembrandt’s expert also admitted that Facebook does not infringe without BigPipe and Audience Symbol features.

As explained by the district court, “BigPipe, introduced in Fall 2009, is a web page acceleration and optimization computer program developed by Facebook to increase the speed at which certain web pages are delivered from Facebook’s servers to the user’s web browser. BigPipe takes a web page and divides it into portions known as “pagelets” using a certain piece of computer code12 to specify each pagelet.” In addition, “Audience Symbol, introduced in June 2009, is a small icon displayed next to stories on various webpages on Facebook’s website. The symbol signifies the third-party users, or “audience,” allowed to view a particular story. Rembrandt alleges that display of Audience Symbol violates both the ‘316 and ‘362 patents.”
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The Defendant QxQ Inc. (“QxQ”), which is a California company, moved to transfer a patent infringement case from the Eastern District of Wisconsin to the Northern District of California. QxQ asserted that the connections between the Eastern District of Wisconsin and the case were so limited that litigating the action in Wisconsin would be less convenient than litigating in the Northern District of California. Plaintiff Circuit Check Inc. (“Circuit Check”), which is a Minnesota company, opposed the motion, in part, because QxQ delayed filing the motion to transfer.

QxQ moved to transfer based on 28 U.S.C. § 1404(a), which, as explained by the district court, authorizes changes of venue “for the convenience of parties and witnesses, in the interest of justice.” As noted by the district court, “[w]ith respect to the convenience evaluation, courts generally consider the availability of and access to witnesses, and each party’s access to and distance from resources in each forum. Other related factors include the location of material events and the relative ease of access to sources of proof.” Research Automation, Inc. v. Schrader-Bridgeport Intern., Inc., 626 F.3d 973, 978 (7th Cir. 2010) (citations omitted). In assessing the interest of justice, “courts look to factors including docket congestion and likely speed to trial in the transferor and potential transferee forums, each court’s relative familiarity with the relevant law, the respective desirability of resolving controversies in each locale, and the relationship of each community to the controversy.” Id. (citations omitted).
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Automatic Data Processing, Inc. (“ADP”) filed a declaratory judgment action against Wellogix, Inc., and Wellogix Technology Licensing LLC (“Wellogix”) for a determination that ADP does not infringe a Wellogix method patent on comparing data from purchase orders, field data, and invoices. After the action was filed, ADP moved for summary judgment on the ground that not all of the allegedly infringing steps were performed in the United States.

The district court began its analysis by stating that “[a] machine patent may be infringed if the protected technology is used, sold, or offered for sale ‘within the United States.’ Unlike a machine patent, a foreign method cannot be patented if its sold or offered for sale in the United States. All steps of the method must be done domestically.’
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In the patent infringement action between Cobra International, Inc. (“Cobra”) and BCNY International, Inc. (“BCNY”), BCNY filed a motion to compel several documents, including a litigation funding agreement. Cobra opposed the motion asserting that the person funding the litigation was not making decisions regarding the lawsuit and was not interfering with the prosecution of the litigation. BCNY asserted that it was entitled to the document to determine if the patent had transferred.

As explained by the district court, “[i]n response to request for production number 32, which pertains to the litigation funding agreement, Mr. Eavzan stated in his declaration that ‘Cobra continues to own the ‘858 patent. The person or entity funding Cobra’s prosecution of the lawsuit against [BCNY] is not making the decisions for Cobra regarding the above-styled lawsuit, is not interfering with the independence and professional judgment of Cobra’s counsel relating to the above-styled lawsuit, and is not receiving confidential communications between Cobra and its counsel relating to the above-styled lawsuit.'”
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Porto Technology Co., LTD (“Porto”) filed a patent infringement action against Cellco Partnership d/b/a Verizon Wireless (“Verizon”). During the litigation, Verizon moved to compel communications between two of the plaintiffs, who are brothers, and counsel. As explained by the district court, the court began by looking at “communications between Ji-Soo Lee, Heung-Soo Lee (“Lee Brothers”) and counsel. Obviously, any communications between Plaintiff Ji-Soo Lee and his counsel pertaining to this or directly related infringement litigation is covered by attorney-client privilege. Communications between Heung-Soo Lee and his counsel do not appear to be similarly cloaked. Any privilege that existed was waived by Heung-Soo Lee by voluntarily disclosing communications concerning this — and related litigation — with both the Court and the Defendant, Verizon. Over 100 unsolicited documents pertaining to the ‘518 and ‘413 patents have been received and retained by the Clerk of this Court.”
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In this patent infringement action between competing producers of satellites and satellite networking systems, ViaSat plaintiffs asserted that Space Systems/Loral infringed the ‘875 patent. As explained by the district court, the ViaSat plaintiffs are corporations that develop commercial and military satellite and digital communication technologies. SS/L is a wholly owned subsidiary of Loral, and both SS/L and Loral are also involved in the satellite business. In 2006, ViaSat and SS/L began negotiating over the possibility of collaborating on a major satellite construction project.

SS/L moved for summary judgment arguing that the earliest date at which ViaSat’s claims to the ‘875 Patent had written description support under 35 U.S.C. § 112, ¶ 1 was March 25, 2009. The ‘875 Patent is a “continuation-in-part” application, and ViaSat argued that it claims priority to a series of provisional applications that it filed in 2006.
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