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Spine Solutions, Inc. (“SSI”) sued Medtronic Sofamor Danek (“Medtronic”) for patent infringement alleging that three of Medtronic’s artificial disc implants infringed an SSI patent. The case proceeded to trial and the jury awarded $5.7 million in lost profits and an 18 percent royalty on the other infringing sales. The jury also determined that the infringement was willful.

Following the jury verdict, the district court doubled the damages and awarded attorneys’ fees against Medtronic. The district court also entered a permanent injunction. On appeal, the Federal Circuit reversed the decision in part, vacated in part and affirmed in part. With respect to the finding of lost profits, the Federal Circuit determined that lost profits were unavailable due to lack of standing. It also reversed a finding of the district court that one of the Medtronic products (the O-Mav) infringed the patent-in-suit and directed that the district court enter a finding of non-infringement with respect to that product. The Federal Circuit also reversed the willfulness finding and the injunction due to certain extraterritorial restrictions in the injunction. On remand, the Federal Circuit directed that, among other things, the district court determine the proper reasonable royalty to which SSI might be entitled on the infringing sales for which the jury awarded lost profits.
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In the ongoing action between Apple and Samsung, Apple filed a motion for a protective order seeking to prohibit one of Samsung’s attorneys from participating in any further depositions. Alternatively, Apple sought an order restricting the attorney from engaging in particularly abusive deposition acts, including belligerent and insulting treatment of witnesses, repeated interruptions, unilaterally terminating a deposition, uncivil treatment of opposing counsel, engaging in lengthy colloquy on the record, among other things.

Samsung objected to the order and denied that any in appropriate conduct had occurred at all Samsung also noted that Apple’s witnesses were Apple’s patent lawyers and agents who are accustomed to the adversarial process.
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In a case pending in the United States District Court for the Eastern District of Texas, the district court entered an order that leave of court must be obtained before a summary judgment motion may be filed. Defendant filed a letter brief with the district court seeking leave to file a motion for summary judgment of invalidity based on indefiniteness.

The letter brief asserted that the claims in the patent-in-suit were indefinite based on the Federal Circuit’s decision in Datamize LLC v. Plumtree Software, Inc., 417 F.3d 1342 (Fed. Cir. 2005). In Datamize, the Federal Circuit affirmed a summary judgment in favor of a competitor on the basis that the claims that disclosed a software program which allowed people to author user interfaces for electronic kiosks were indefinite. The Federal Circuit focused on the patent’s use of the term “aesthetically pleasing” and whether that term met the standard for definiteness. The Federal Circuit found that definition of “aesthetically pleasing” could not depend on an undefined standard and that the definition could not be based on subjective opinion.
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Oracle served an opening damages expert report in May 2011 and it did not serve any other opening damages expert reports. Google challenged the expert report with a Daubert motion, which the district court granted in July 2011.

In the order granting the Daubert motion, the district court allowed Oracle an opportunity to cure the defects in the expert report. During a case management conference a month later, Oracle stated that it might present a second, additional damages expert. Oracle served a revised opening damages expert report in September 2011 from the same expert that it had used to prepare the May 2011 report. It did not submit an additional expert report on damages at that time.
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In the ongoing trial over damages for several Microsoft products between Lucent and Microsoft, the United States District Court for the Southern District of California has reduced the damage award against Microsoft from $70 million to $26.3 million, plus prejudgment interest. The new trial on damages occurred after the Federal Circuit affirmed a jury’s finding that the so-called Day patent was valid and infringed but reversed the jury’s determination of damages. The Day patent claims a date-picker feature in the calendar function of Outlook, one of just many uses for Microsoft’s popular Outlook program. The Federal Circuit remanded the case for a new trial on damages to determine an appropriate royalty based on one feature of Outlook.

After the jury returned a verdict of $70 million, the district court addressed whether the amount should be reduced on post-trial motions. Before addressing that issue, the district court noted that “[t]his case illustrates the difficulty of properly valuing a small patented component, without a stand-alone market, within a larger program.” Lucent’s damage calculation was based on a lump-sum license in the form of an upfront, paid-in-full royalty. The royalty calculation is particularly difficult in this case because the date-picker feature is just one among many Outlook features and Outlook, although sold separately, is much more commonly purchased as part of the suite of products found in Microsoft Office.
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In three patent cases brought by the same plaintiff, Raylon LLC, against numerous defendants, Judge Davis of the Eastern District of Texas denied Rule 11 sanctions and motions for attorneys’ fees under Section 285 of the Patent Statute, and Section 1927 of Title 28.

Following the grant of summary judgment of noninfringement, Defendants filed motions contending that Raylon’s infringement theory was “so legally untenable” that fees and costs should be awarded under Sections 285 and 1927. Defendants earlier had filed a Rule 11 motion seeking sanctions. Raylon asserted U.S. Patent No. 6,655,589 (“the ‘589 patent”) against all of the defendants. All of the claims of the ‘589 patent require a “display being pivotably mounted on said housing.” Raylon argued that this should be construed to mean “an electronic device attached to a housing that visually presents information and allows the display to be moved or pivoted relative to the viewer’s perspective” and alleged that infringement was found where the entire device, not just the display, could be pivoted to the view. Defendant EZ Tag sought a construction of the term to mean that “an integral computer screen which can move positions with regard to the computer housing and is not maintained in a fixed position.” The remaining defendants argued that it should mean “the display must be mounted on the housing and the mounting of the display on the housing must be pivotable so that the display and housing may pivot with respect to each other.” The Court construed the term as “the display must be mounted on the housing so that the display and housing may pivot with respect to each other.” Because it was undisputed that all of the defendants’ accused products had displays that were rigidly mounted as to the housing, the court granted summary judgment of noninfringement, both literally and under the doctrine of equivalents.
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The plaintiff sued over 500 defendants for patent infringement in multiple actions in the United States District Court for the Eastern District of Texas. The patent-at-issue claims a “‘software interface’ that may provide a ‘map of a selected geographic area’ such that ‘information which is associated with particular geographic locations,’ such as ‘good and services,’ ‘can be readily accessed.'” Eighty-one defendants in the various actions moved to stay the case pursuant to the “customer suit exception” to the first-to-file rule.

The moving defendants contended that their case should be stayed pending the outcome of a later filed declaratory judgment action brought by Microsoft and Google, among others, in the District of Delaware, because the declaratory judgment actions were manufacturer suits. The moving defendants contended that they merely license the relevant software from the manufacturers. Accordingly, the moving defendants contended a resolution of those lawsuits may resolve the cases against the licensees.
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In the continuing battle over the Android operating system, the United States District Court for the Northern District of California decided to appoint its own damage expert. The district court explained that under Fed.R.Evid. 706(a), the district court “may appoint expert witnesses of its own selection” and noted that the Supreme Court has long recognized the constitutionality of court-appointed experts. The district court also noted that the Federal Circuit and the Ninth Circuit have acknowledged and recognized that the district courts enjoy wide latitude in making such appointments.

After explaining the authority for the appointment of expert witnesses, the district court turned to why such an appointment was necessary in the ongoing battle between Google and Oracle. Stating that “[t]he damages aspect of this controversy is particularly involved,” the district court noted that “[t]he accused items are not entire products but rather elements of products, whose roles and relative importance within the larger units are disputed.” The parties also further complicated the damage analysis by using elaborate nontraditional business models for distributing and monetizing the relevant products. “For example, Google allegedly distributes its accused Android software free of charge, hoping to later benefit from improved market position and advertising revenue generated by Google searches on Android devices. Oracle, for its part, claims to have been harmed by the supposed fragmentation of its Java platform and developer community due to Google’s allegedly selective use of Java elements in Android.”
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In December 2004 and early in 2005, the plaintiff filed three patent infringement actions against several parties. The district court consolidated the cases. All of the consolidated cases were stayed by the district court pending reexamination by the Patent and Trademark Office (“PTO”). Many years later, the Board of Patent Appeals and Interferences (“BPAI”) upheld the validity of two of the patents. As a result, the plaintiff moved to lift the stay of the consolidated actions. Defendants opposed the lifting of the stay.
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In this patent infringement action, the defendant moved to exclude plaintiff’s expert witness on the basis that the expert was not disclosed on a timely basis. The plaintiff disclosed the witness on November 4, 2011, as an expert to testify as to “the molecular weigh characterization of polymers” in a claim construction hearing scheduled for November 9, 2011. The deadline for identifying witnesses to give testimony relevant to claim construction expired in July 2011.

In analyzing whether there was surprise as to the expert testimony, the district court began by noting that “[t]o name a witness so far beyond the deadline set by the scheduling order would require a strong justification.” The district court found that “[t]he issue of how molecular weight of a polymer should be measured was clearly identified as an issue for claim construction in the parties’ joint claim construction statement.” From this joint claim construction statement, the district court determined that it was established that plaintiff had notice of “differences as to how the molecular weight of a polymer was measured well before July 29, 2011.” The district court also noted that plaintiff did not suggest otherwise.
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