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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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In May 2012, the Complainants in this ITC proceeding, Standard Innovation (US) Corp. and Standard Innovation Corporation (“SIC”) filed a motion to terminate the Investigation in part with respect to U.S. Patent No. D605,779 (the “‘779 patent”). SIC filed the motion seeking to withdraw its allegations with respect to the ‘779 patent in order to streamline the investigation and to conserve the resources of the parties, the Administrative Law Judge, and the Commission. The Respondents opposed the motion.

In analyzing the motion, the Administrative Law Judge first considered the procedural basis for the motion: “A complaint can seek partial termination of an investigation by withdrawing asserted claims or asserted patents pursuant to Commission Rule 210.21(a)(1). See Certain Tool Handles, Tool Holders, Tool Sets, Components Therefore, Inv. No. 337-TA-483, Order No. 7 (Apr. 22, 2003) (granting motion for partial termination as to certain claims where complainant ‘determined not to proceed with the investigation as to [certain claims], on the ground that a reduction in the number of patent claims in a more expeditious manner and will also reduce the time and resources required from all of the parties and the administrative law judge to proceed with the investigation’). In the absence of extraordinary circumstances, such partial termination will be granted. Id. Moreover, while good cause need not be shown in support of a complainant’s voluntary request to withdraw patent claims from an investigation where withdrawal would serve to ensure resolution of the issues remaining in the investigation in an orderly fashion.’ Certain Data Storage Systems and Components Thereof, Inv. No. 337-TA-471, Order No. 21 (Oct. 8, 2002) (‘The withdrawal of 64 claims will narrow and focus the issues in this investigation and allow all parties to concentrate their efforts on matters about [which] there is true controversy.’)”
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SAP AG and SAP America (“SAP”) filed a motion for partial summary judgment against DataTern for failing to serve infringement contentions charting the patents-in-suit against SAP’s accused products. The district court’s order specified that the infringement contentions were required to be served on or before March 23, 2012.

In analyzing the motion for summary judgment, the district court noted that the deadline for DataTern to serve its infringement contentions was originally March 16, 2012 but was moved back to March 23, 2012 at the request of DataTern. DataTern admitted that it had not served infringement contentions in compliance with the district court’s order, but instead argued that the reason it had failed to do so was because SAP had failed to timely provide it with the source code necessary to create the contentions.
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Last December, the district court in the Northern District of California denied Apple’s motion for a preliminary injunction. Apple had moved for the preliminary injunction based on alleged infringement of three design patents and one utility patent. After the denial of the preliminary injunction motion, Apple appealed the order to the Federal Circuit. The Federal Circuit affirmed most of the district court’s order denying the preliminary injunction but remanded to the district court for further proceedings on one of the design patents. On remand, the Federal Circuit directed that the district court consider the balance of hardships and whether the public interest favored an injunction with respect to the one design patent.

The district court had found that Apple had established that the Samsung Galaxy Tab 10.1 likely infringed the design patent and that Apple was likely to suffer irreparable harm as a result of the infringing conduct. But the district court denied the motion because it found that the design patent was likely invalid based on several prior art references. The Federal Circuit upheld the findings of infringement and irreparable harm, but reversed the district court’s finding of invalidity as to one design patent.
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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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