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The plaintiff, Realtime Adaptive Streaming LLC’s (“Realtime”) filed an ex parte application to file its Certification and Notice of Interested Parties under seal (the “Application”) at the beginning of this patent infringement case.  Realtime asserted that it should be permitted to file the Certification under seal in order to keep confidential the identity of the litigation financing company engaged in the case.

Realtime argued that the agreement between Realtime and the litigation funder “explicitly provides that the identity of the parties to the agreement is itself to be treated as confidential information” and “that all terms of the agreement are to be treated as confidential information.”

The district court began its analysis by noting that the courts recognize a “general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n. 7 (1978). They also “have expressly recognized that the federal common law right of access extends to pretrial documents filed in civil cases.” San Jose Mercury News, Inc. V. U.S. Dist. Court–Northern Dist. (San Jose), 187 F.3d 1096, 1102 (9th Cir. 1999). Thus, “unless a particular court record is one ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.2006) (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir.2003)). For non-dispositive motions, “a ‘particularized showing’ under the ‘good cause’ standard of Rule 26(c) will suffice.” Id. at 1180 (quoting Foltz, 331 F.3d at 1138).

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Greatbatch moved in limine to preclude the defendant, AVX, from presenting the testimony of AVX’s expert, Dr. Panlener, by deposition. The district court concluded that permitting the expert to testify would deprive Greatbatch of the opportunity to challenge Dr. Panlener’s “credibility and would be unfairly prejudicial, under the totality of circumstances, including Dr. Panlener’s role as an employee and then consultant to AVX, his numerous instances testifying (including as a corporate representative), and representations made as to the termination of his relationship with AVX (which appears to have been related to conduct that may be probative of issues that are the subject of the forthcoming trial).”

The district court also noted that AVX may have “procured” the absence of Dr. Panlener by terminating its relationship with him after relying on his deposition testimony and depriving Greatbatch of an opportunity to cross-examine him regarding that termination and then attempting to rely on Dr. Panlener’s necessarily incomplete testimony at trial. The district court concluded that regardless of whether AVX may fairly be viewed as having “procured” Dr. Panlener’s absence, “the Court agrees with Greatbatch that it would be unfair to permit AVX to secure Dr. Panlener’s self-serving testimony about, for instance, the purported pin washer changes, and thereafter fire him so that AVX can play his deposition to the jury and avoid the specter of his live testimony.”

The district court also disagreed with the defendant’s argument that it was entitled to present Dr. Panlener’s deposition testimony at trial under Rule 32(a)(4)(B) (“A party may use for any purpose the deposition of a witness . . .”). The district court found that the Rule 32 did not  override the district court’s “discretion to manage the trial in a manner that is fair to both sides and consistent with all other applicable rules.” See generally Garcia-Martinez v. City & Cty. of Denver, 392 F.3d 1187, 1191 (10th Cir. 2004) (“Other cases hold that the mere fact that a party is more than 100 miles from the courthouse does not require the district court to automatically admit a party’s deposition.”) (emphasis added).

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After this patent infringement action was filed, the defendant, BigCommerce, filed a motion to dismiss for failure to state a claim for relief pursuant to Fed.R.Civ.P. 12(b)(6). BigCommerce did not file a motion to transfer or to challenge at that time.  After the district court ordered the plaintiff to file an amended complaint and the plaintiff filed the amended complaint, BigCommerce filed a motion for improper venue pursuant to Fed.R.Civ.P. 12(b)(3). The BigCommerce motion was filed shortly after the Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, No. 16-341, 137 S.Ct. 1514 (May 22, 2017).

BigCommerce argued that although it is incorporated in Texas, it is not incorporated in the Eastern District of Texas and lacks any place of business in the Eastern District of Texas. Therefore, BigCommerce argued it should be dismissed from the case because of improper venue.

The district court concluded that BigCommerce had waived the defense because the defense was not raised in the original Fed.R.Civ.P. 12(b)(6). “A party waives any defense listed in Rule 12(b)(2)–(5) by . . . omitting it from a motion in the circumstances described in Rule 12(g)(2).” Fed. R. Civ. P. 12(h)(1)(A). Under Rule 12(g)(2), “a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” Certain defenses are exempt from Rule 12(g)(2)’s consolidation requirement, but venue is not one of the exempt defenses. See Rule 12(h)(2)–(3). See Elbit Sys. Land & C41 Ltd. v. Hughes Network Sys., LLC, No. 2:15-cv-37-RWS-RSP, 2017 WL 2651618, at *19 (E.D. Tex. June 20, 2017) (citing Albany Ins. Co. v. Almacenadora Somex, S.A., 5 F.3d 907, 909 (5th Cir. 1993)). “Thus, by filing a motion to dismiss for failure to state a claim under Rule 12(b)(6) and omitting its venue defense, [BigCommerce] waived the defense.” Id. at *20 (citing Fed. R. Civ. P. 12(g)(2) and 12(h)(1)(A)).

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In this patent infringement action, T-Mobile sought email discovery from seventeen named inventors of the asserted patents and the licensing executives involved in the parties’ FRAND negotiations. T-Mobile asserted that the discovery could reveal the inventors’ contemporaneous understanding of the invention and whether T-Mobile is an unwilling FRAND licensee. T-Mobile also proposed limiting the email discovery by specific search terms.

Huawei raised two arguments in support of its objections to producing the requested documents. First, Huawei contended that T-Mobile had not shown that the e-mail discovery would be necessary or proportional to the needs of the case. Second, T-Huawei argued that T-Mobile delayed in seeking the discovery warranted denying the requested relief.

In analyzing the arguments, the district court was not persuaded by either of Huawei’s arguments. “As other courts have explained in complex case such as this, Huawei’s proposed limitations on e-discovery or the number of email custodians is not typically warranted. See Knauf Insulation, LLC v. Johns

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In this patent infringement action, the Defendants filed motions for partial summary judgment of invalidity with respect to two of the patents at issue in the case. The defendants argued that two district courts had already found the two patents at issue in the case patent ineligible under section 101 of the Patent Act.
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Metaswitch moved to exclude evidence of copying from a patent infringement action filed against it by Genband. Genband asserted during the pretrial process that it was seeking to introduce evidence of copying as an indication of nonobviousness.
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Omega Patents, LLC (“Omega”) filed a patent infringement action against CalAmp Corp. (“CalAmp”) asserting that CalAmp infringes the claims of U.S. Patent No. 6,346,876 (“the ‘876 Patent”), U.S. Patent No. 6,737,989 (“the ‘989 Patent”), U.S. Patent No. 6,756,885 (“the ‘885 Patent”), U.S. Patent No. 7,671,727 (“the ‘727 Patent”), and U.S. Patent No. 8,032,278 (“the ‘278 Patent”). The patents relate to control systems for vehicles with a “data communications bus.” Omega asserted that CalAmp’s devices are used to monitor particular vehicle characteristics and conditions and report vehicle information to an end user, thus infringing on the patents-in-suit. In particular, CalAmp advertises for sale the LMU-3000, LMU-3030, and LMU-3050 (the “Accused Devices”) which are described as full-featured tracking systems which “access vehicle diagnostic interface data, track vehicle speed and location, plus detect hard braking, cornering, or acceleration.”
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After the PTAB granted Defendant’s petition for IPR on certain of the claims in the patent-in-suit, the defendant filed a motion to stay the action pending the resolution of the IPR. The plaintiffs objected to a stay, but alternatively advocated for a partial stay allowing them to move forward with their causes of action related to Claims 12, 18, 20-22, and 25, which were not being reviewed by the PTAB.

The district court began its analysis by noting that before the court could rule on the motion to say, the claim construction deadlines approached and passed and neither party asked the district court to extend the claim construction deadlines due to the pending motion for a stay. Instead, both parties filed their opening and responsive claim construction briefs.
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Defendants Metaswitch Networks Ltd and Metaswitch Networks Corp. (“Metaswitch”) filed a motion to strike plaintiff’s expert opinions of Mr. Lanning, including his opinions that the patents in suit claim patent-eligible subject matter under 35 U.S.C. § 101.

In analyzing the motion to strike, the district court noted that “[t]he ultimate question of patent eligibility under § 101 is an issue of law.” BRCA1- & BRCA2-Based Hereditary Cancer Test Patent Litig. v. Ambry Genetics Corp., 774 F.3d 755, 759 (Fed. Cir. 2014). Therefore, the district court stated that “the issue of subject matter eligibility under § 101 will not be tried to the jury in this case. No expert will be permitted to testify to the jury about whether the asserted patents claim eligible subject matter under § 101.”
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Plaintiff Better Mouse Company’s (“Better Mouse”) filed a motion to strike portions of the rebuttal expert report and exclude testimony of Richard Eichmann. Better Mouse asserted that the district court should exclude Mr. Eichmann’s testimony stating that he determined the value of U.S. Patent No. 7,532,200 (the Asserted Patent or ‘200 patent) using forward citation analysis. Better Mouse argued that Mr. Eichmann’s forward citation analysis is flawed because (1) “he failed to count citations to counterpart patents and applications, which share an identical or very similar disclosure”; and (2) “he failed to account for patent families, which are linked either directly or indirectly by a priority document and thus may also disclose the same idea as the related ‘Comparable Patent.'”

Better Mouse asserted that “[t]he Court should strike Mr. Eichmann’s forward citation count because it ignores citations to related patents that disclose the same technology, thereby grossly undercounting the number of relevant forward citations.” Plaintiff argued that the district court should follow Oracle, where the Northern District of California held “that failing to include citation counts to patents (in that case, predecessors to a reissue patent) that have ‘the same specification and drawings’ was a fatal flaw in [an] expert’s forward citation count.” (Dkt. No. 226 at 4 (citing Oracle Am., Inc. v. Google, Inc., No. C 10-03561 WHA, 2012 WL 877125 (N.D. Cal. Mar. 15, 2012).)”
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