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With the Federal Circuit’s recent decision in Akamai Techs., Inc. v. Limelight Networks, Inc., 2012 U.S. App. LEXIS 18532 (Fed. Cir. Aug. 31, 2012), the elements for proving inducing infringement changed significantly. As a result, we can expect that a number of plaintiffs in pending patent cases will seek to amend their complaints to take advantage of the new standard. Whether amendment will be granted or not will vary depending on the stage of the case.
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The court previously awarded sanctions in the form of attorneys’ fees pursuant to Fed.R.Civ.P. 37 to both Samsung and Apple based on various discovery motions. Apple and Samsung both filed applications for attorneys’ fees and then objected to each other’s applications. The court found the descriptions of the attorneys’ fees, despite two attempts to submit detailed invoices, lacking. As explained below, the lack of detailed invoices caused the court to reduce the attorneys’ fees for both Apple and Samsung.

Samsung was awarded attorneys’ fees because Apple failed to turn over to Samsung certain deposition testimony by Apple’s employees in other matters. After granting three motions to compel, the court awarded sanctions in favor of Samsung, and Samsung requested approximately $258,000 in fees. Apple was awarded attorneys’ fees because Samsung was dilatory in producing documents to Apple. Apple sought approximately $116,000 in attorneys’ fees.
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With a trial pending in late November in this patent infringement action, Marvell Technology Group, LTD (“Marvell”) moved to strike Carnegie Mellon University’s (“CMU”) expert report on damages. Specifically, Marvell asserted that the expert’s reference to overall price, profit or margin of the chips accused of infringement in the litigation was irrelevant and highly prejudicial in light of the Federal Circuit’s recent decision in LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51 (Fed. Cir. 2012). CMU opposed the motion asserting that LaserDynamics did not impact the damage expert because the expert’s royalty calculation was not based on the entire market value, which was at issue in LaserDynamics.

The patents-in-suit are directed to sequence detection in high density magnetic recording devices, specifically high density magnetic recording sequence detectors. CMU asserted that Marvell infringed the patents-in-suit throughout its “sales cycle,” which involves testing of both computer programs and manufactured chips. As explained by the district court, if a sales cycle is successful, it culminates with a “design win” and Marvell makes mass sales of chips that then allegedly perform the patented methods. CMU sought a reasonable royalty for Marvell’s alleged infringement throughout the entire process.
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Over the weekend, Apple and HTC settled all of the long running patent suits that both companies had filed against each other in multiple jurisdictions. Although few details of the settlement were released in the two sentence press release that included brief quotes from HTC and Apple, the companies did state the the they had reached a “global settlement” that included dismissal of all current lawsuits. The companies also specified that the license extends to current and future patents held by both parties for the next ten years. The remainder of the terms, including the financial terms, are confidential.

And so one of the earliest and longest patent battles over smartphones ended quietly. Although no monetary terms were disclosed, it is likely that HTC is paying a royalty to Apple in order to put an end to the litigation. The impact on HTC from the Apple lawsuits was significant, hurting both its stock price and its ability to timely ship product due to the exclusion order Apple obtained at the ITC. As a result of the settlement, HTC will now be able to focus on making and selling products instead of litigation. That can only be a positive for HTC.

But what about Apple?
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Defendants BRP US Inc. and Bombardier Recreational Products, Inc. (“Bombardier” or “BRP”) filed a motion to stay pending the inter partes reexamination of the patents-in-suit asserted by Polaris Industries, Inc. (“Polaris”). Polar manufactures recreational vehicles, including snowmobiles and Polaris obtained patents for rear suspension technology for snowmobiles. Polaris asserts the designs related to these patents improve rider comfort over rough terrain.

Bombardier is a Canadian recreational vehicle company that manufactures the “Ski-Doo” line of snowmobiles and it is also a competitor of Polaris. Bombardier introduced a rear suspension technology for snowmobiles called “rMotion.” Polaris alleged Bombardier’s suspension technology infringes the patents-in-suit. Prior to filing the patent infringement action, Polaris sent Bombardier a notice of infringement letter. As a result, Bombardier initiated an inter partes reexamination of the patents. The patent infringement action was filed one week after the reexamination. The PTO subsequently granted the request for reexamination and Bombardier moved to stay the case.
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Carnegie Mellon University (“Carnegie Mellon”) filed a patent infringement action against Marvell Technology Group, Ltd. (“Marvell”). As the parties proceeded to trial, both parties filed exhibit lists, deposition designations and objections to the exhibits and the deposition designations. In all, the parties submitted 2700 separately listed exhibits, which both parties claimed that they would or might enter at trial. The parties also listed hundreds of deposition designations and counter designations, which the parties also asserted they would or might use at trial.

The parties also submitted objections to the district court in which they objected to almost every exhibit, deposition designation and counter deposition designation. These objections were presented in a series of spreadsheets that summarized the objections. The actual exhibits or depositions were not included with the objections.
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CSR Technology, Inc. (“CSR”) filed a patent infringement action against Bandspeed, Inc. (“Bandspeed”) for infringement of its signal processing patents. After the district court issued its claim construction ruling, Bandspeed moved for summary judgment.

As the district court explained, “[t]he ‘771 and ‘886 patents relate to signal detection and acquisition respectively. Signal detection involves checking an incoming signal for its fit with reference signals, so as to detect the signal’s identity. Signal acquisition involves sampling an incoming signal so as to acquire it.”
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PB&J Software (PB&J) filed a patent infringement action against defendant Backup Agent. PB&J is the assignee of the 7,356,535 patent (the ‘535 patent) and asserted that Backup Agent was infringing, inducing others to infringe and/or was contributorily infringing at least one claim of the patent by offering services and licensing software implementing what Backup Agent identified as “seed loading.”

Backup Agent moved to dismiss the claim for direct infringement on the ground that PB&J failed to identify the accused product. As explained by the district court, “Defendant maintains that plaintiff failed to state a claim for direct infringement because it fails to identify the accused product. Here, plaintiff identifies infringing activities as including, but not limited to, ‘offering services and licensing software implementing what BackupAgent identifies as a ‘seed loading.’ Defendant argues that plaintiffs pleading deprives defendant of any notice of plaintiffs claims because plaintiff fails to explain in what products, services, or documentation defendant allegedly identifies this ‘seed loading.'”
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On December 20, 2010, Plaintiff Multimedia Patent Trust (“MPT”) filed a patent infringement action against Defendants Apple, Inc. (“Apple”), LC Electronics, Inc., LC Electronics U.S.A., Inc., and LC Electronics Mobilecomm U.S.A., Inc. (collectively “LC”), and Canon USA, Inc. and Canon, Inc. (collectively “Canon”). The complaint alleged that Defendants are liable for infringement of four patents related to video compression technology: (U.S. Patent Nos. 4,958,226 (“the ‘266 patent”), 5,227,878 (“the ‘878 patent), 5,500,678 (“the ‘678 patent”), and 5,136,377 (“the ‘377 patent”) (collectively the “patents-in-suit”). After MPT served final infringement contentions, Defendants Canon, LC and Apple, Inc. (“Apple”) filed motions to strike the final infringement contentions.

Canon moved to strike MPT’s final infringement contentions on the ground that that the final contentions alleged, for the first time, that Canon hardware infringes the ‘878 Patent and that these amendments were made without leave of the district court In response, MPT argued that it was allowed to amend its contentions based on the district court’s claim construction order and newly produced discovery.
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Motorola moved for partial summary judgment to dismiss Microsoft’s claim for a reasonable and non-discriminatory (“RAND”) license agreement to be determined by the district court. As explained by the district court, “Microsoft and Motorola are both members of the Institute of Electrical and Electronics Engineers (“IEEE”) and the International Telecommunication Union (“ITU”). The IEEE and ITU, neither of which are parties to the instant dispute, are international standards setting organizations. Standards setting organizations play a significant role in the technology market by allowing companies to agree on common technological standards so that all compliant products will work together. Standards lower costs by increasing product manufacturing volume, and they increase price competition by eliminating “switching costs” for consumers who desire to switch from products manufactured by one firm to those manufactured by another.”

Motorola asserted that it would be inappropriate for the district court to fashion a license agreement between Microsoft and Motorola for Motorola’s standard essential patents because no license agreement currently exists. The district court disagreed: “Motorola’s declaration to the ITU and IEEE constitute binding agreements to license its essential patents on RAND terms, and Microsoft is a third-party beneficiary to those agreements and therefore entitled to a license of Motorola’s essential patents on RAND terms. (6/6/12 Order at 13-14.) Indeed, Motorola has agreed that Microsoft is a third-party beneficiary to Motorola’s assurances to license its essential patents on RAND terms. [Footnote omitted.] Nevertheless, Motorola argues, in part, that no license agreement exists between Microsoft and Motorola because Motorola’s commitments to the ITU and IEEE only “bind Motorola to engage in bilateral, good-faith negotiations leading to RAND terms,” but do not require Motorola to grand licenses on RAND terms. (Mot. At 18-20.) This is not what the court held in its June 6, 2012 order, and the court declines to reach that conclusion in this order. Instead, after examining the language of Motorola’s agreements with the ITU and IEEE, the court held that Microsoft is entitled to a RAND license. (6/6/12 Order at 13-14.) To be clear, having previously determined that Microsoft has not repudiated or revoked this right, the court’s prior holding means that Motorola must grant Microsoft a RAND license to its standard essential patents.”
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