Amending Contentions to Add Products and DOE arguments

Orders passing on motions to amend infringement or invalidity contentions are always of interest, since you want to know which fact situations will and won’t permit contentions to be changed.  In a recent case the court granted the plaintiff’s motion for leave to amend its contentions to add additional allegedly infringing products and doctrine of equivalents (DOE) arguments based on deposition testimony obtained in the case.

Motions for Partial Summary Judgment and the Word “Shall”

Motions for partial summary judgment are an oft-used tool in the trial lawyer’s arsenal, especially since the 2010 amendments to the FRCPs which changed the terminology referring to them, and saw the triumphant return of the word “shall” after a three year exile in favor of the word “should.”

Accordingly, this opinion which came out earlier today is of interest to readers as it provides a detailed analysis of what the rule requires and doesn’t require, as well as an analysis of how the MPSJ can best be used (or not used) in patent cases.

The “how thin can you slice the apple” metaphor is thus again relevant this week.

Triable Issues in Section 287 defenses

Reader: There is no way you can connect pictures of a sunken aircraft carrier’s planes to damages defenses in patent cases.

Me: Hold my beer.

The discovery of the wreck of the old Lexington (CV-2) sunk at the Battle of the Coral Sea was almost an anticlimax after the wreck was found to have dozens of nearly perfectly preserved aircraft that had apparently floated off the carrier’s flight deck as it sank.  Most notable were several TBD Devastator torpedo bombers and F4F-3 Wildcat fighters in part because even after 76 years at the bottom of the Pacific the aircraft still had nearly pristine … markings.

In patent cases, whether or not products were marked can have a major effect on the recoverable damages.  And in a way not really at all similar to the way that submersion for 76 years at the bottom of the Pacific didn’t erase the Felix the Cat insignia on the F4Fs, the facts of how products were marked can make damages recoverable, or at least shift the burden under Arctic Cat.

This recent decision provides another useful analysis of when the burden was successfully shifted, and when there is a triable issue as to whether Plaintiff provided actual notice under § 287 before the lawsuit.

Ericsson $75 million verdict reinstated; damages enhanced $25 million; no attorneys fees

After a four-day trial in December, a Marshall jury in Judge Roy Payne’s court found that Defendant TCL willfully infringed claims 1 and 5 of United States Patent No. 7,149,510 asserted by Plaintiff Ericsson by selling phones and devices equipped with the Google Android operating system, and the jury awarded $75 million as a lump sum royalty.

The court previously ordered a new trial on damages after finding Ericsson’s damages theory unreliable, but last Thursday the Court reconsidered that order, reinstated the jury’s verdict in full, and resolved all other remaining disputes, i.e. TCL’s motions for judgment as a matter of law, and Ericsson’s motions for enhanced damages and attorney’s fees.

The Gatekeeper

A couple of Daubert rulings today put me in mind of Ghostbusters.  Remember the Gatekeeper and the Keymaster? Well, the outcome of these “gatekeeper” motions may or may not have been as catastrophic to the parties in these cases – it’s usually difficult to tell with the part in/ part out rulings – but as usual they do provide some insight into why some opinions are ruled in or out, and some useful guidance on which challenges are worth making and which aren’t..