Motion for Summary Judgment of Noninfringement Granted

Following claim construction, Judge Lynn granted summary judgment of noninfringement on three of the five asserted grounds, and on the claim of willful infringement. She declined to grant summary judgment in favor of the defendant on its invalidity claims, and also granted in part a motion to exclude portions of the plaintiff’s damages expert’s testimony.

The Written Description Requirement

Judge Albright denied a motion for summary judgment on this basis. “The error of Cloudflare’s argument is that the claims it alleges to be invalid are part of the original specification and therefore described in the specification,” he concluded. “Cloudflare improperly conflates written description under 35 U.S.C. § 112(a) with claiming priority under 35 U.S.C. § 120.”

Are You Sure That’s What You You Want to Do?

In my recent thesis I pointed out the importance of knowing what the court-ordered limits on activity in your case are. This order by SDTX Judge Sim lake brings that into sharp focus. The court noted that the defendant had filed a motion to dismiss and suggested that they think hard about that – because under his procedures it would mean they could not later file a motion for summary judgment.

Clawed-Back Document Not Privileged (and Privilege Waived Anyway)

Defendant clawed back a document attached as Appendix 1 to an expert report. Judge Payne granted the plaintiff’s motion to compel, holding that: (1) the document was not a communication protected by Rule 26(a)(4), and was waived by disclosure anyway since the clawback came too late (two months later and after the filing of a motion to strike the expert and the defendant’s response).

Default Judgment Entered in Trademark Case

Yeti (the company) sought default judgment in its case against various defendants alleging trademark infringement. The court found a sufficient basis for default as to most, but not all, of the asserted claims, and recommended awarding the plaintiff all of the requested $260,000 in equitable disgorgement of the defendant’s revenues as actual damages.