Articles Posted in N.D. California

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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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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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 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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Defendant TIBCO Software Inc. (“TIBCO”) moved to dismiss plaintiff’s claims for inducing infringement and willful infringement. Plaintiff’s complaint alleged that “TIBCO is ‘inducing its customers to directly infringe the ‘864 Patent by providing its customers and others with detailed explanations, instructions, and information as to arrangements, applications, and use of its TIBCO Spotfire Platform products that promote and demonstrate how to use those products in an infringing manner. VSi avers it “demonstrated its patented software MIDaS to Spotfire in 2005 and notified Spotfire MIDaS was covered by U.S. Patent No. 6,877,006 (‘the ‘006 Patent’).'”

The complaint also alleged that “[i]n ‘early 2006,’ according to the FAC, VSi made a ‘similar presentation’ of its MIDaS software to TIBCO. Id. During that presentation, VSi allegedly notified TIBCO that MIDaS was covered by the ‘006 patent and another pending continuation patent application that later issued as that ‘864 patent. Id. Finally, VSi pleads that TIBCO had actual knowledge of the ‘864 patent at least by December 23, 2011, the date this suit was filed.”
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