My partner, Ryan Mauck, and I will be hosting a one-hour webinar on litigating indemnity provisions, which can often arise in the context of patent litigation. The webinar, taking place on March 16, is free of charge and you are invited to attend. Information about the webinar and a link to the registration page are below. – Stan Gibson
Litigating Indemnity Provisions – The Nuts and Bolts of Indemnification
Date and Time: Wednesday, March 16, 2016 | 12:00 PM – 1:00 PM PST
The plaintiff, Magna, filed a motion in limine to exclude references to Inter Partes Review (“IPR”) proceedings. The defendant, TRW, filed a response, arguing that evidence was relevant to multiple issues at trial, including, but not limited to, the history of the asserted patents, prosecution history estoppel, the scope of the claims and prior art, and willfulness.
TRW explained that while it did not intend to argue that the mere fact that the PTO instituted IPR proceedings is conclusive evidence that the asserted patents are invalid, TRW did plan to seek to admit evidence in the IPRs which constitutes the file histories of the patents, while avoiding the undue prejudice, confusion, and irrelevance of informing the jury about details about the IPR proceedings including outcomes.
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After the plaintiff filed suit against the defendants for patent infringement, the defendants contended that they uncovered during discovery a series of e-mails demonstrating that in 2011, plaintiff engaged plaintiff’s attorney, Mr. Alan Fisch, to negotiate the sale of its patent portfolio to third parties. Defendants subsequently moved to compel the deposition of Mr. Fisch after they took the deposition of plaintiff’s Rule 30(b)(6) witness.
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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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Plaintiff Advanced Transit Dynamics, Inc. (“Plaintiff” or “ATD”) filed an ex parte application for a judgment of civil contempt against Defendant Ridge Corporation’s (“Defendant” or “Ridge”) for allegedly violating of the district court’s Modified Preliminary Injunction Order (“Order”). In its ex parte application, ATD asserted that Defendant’s repair and support of accused devices sold before the issuance of the Order constitute infringement and violate the Order.
As explained by the district court, before the effective date of the preliminary injunction, Ridge had sold hundreds of GreenTail devices. Ridge claimed that repairs and replacement parts are necessary to maintain the safe use of the devices. Ridge also asserted that it provides only unpatented parts and services and does not charge for them. On October 22, 2015, Ridge notified ATD that it interpreted the Order to permit Ridge to repair and support GreenTail devices sold before September 29, 2015. ATD disagreed with the interpretation and refused to consent to Ridge’s repair or support of the GreenTail devices.
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