Summary Judgment Sought on Marking Defense

Although finding that the defendant met the “low bar” of its initial burden to raise such a defense, Judge Payne recommended denial of the plaintiff’s motion because there was a genuine issue of fact as to whether the products complied with 35 U.S.C. §287, entitling it to pre-suit damages. This was because the plaintiff did not present arguments that the products were so marked, relying only on its argument that the defendant had not cleared its initial burden.

Second Motion for Summary Judgment of Non-infringement Denied

On the eve of the just-concluded trial Judge Albright denied defendant Cloudflare’s second motion for summary judgment of noninfringement, which was based on the court’s supplemental claim construction. The court concluded that the motion presented a genuine issue of material fact for the jury, and declined to consider “cursory” arguments raised only in a footnote.

Another Omnibus Pretrial Order

Last week’s Sable v. Cloudflare omnibus order with pretrial rulings was so popular, let’s try another one. This week’s is in Flypsi v. Google, and includes the plaintiff going 0-5 on its SJ and expert motions, and Google topping it, going 0-8 on theirs, with one small asterisk (don’t go into Google’s total advertising revenue).

Omnibus Order on Dispositive and Daubert Motions

I guess you had to be there. I mean, literally. But here’s the box score on Judge Albright’s pretrial rulings in this case about to go to trial. Most motions to dismiss/SJ/Daubert denied (granted noninfringement of one patent), but some not, so some defenses remain for trial, and expert testimony is appropriately trimmed. A request for additional claim construction was granted in part.

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.”

Plaintiff’s Motions for Summary Judgment Granted in Part

While you’re enjoying this “after and before” photo of the historical Harrison County Courthouse in Marshall before and after its recent restoration, let me tell you about Judge Payne’s order in Netlist v. Micron recommending granting parts of plaintiff’s three motions for summary judgment.

Motion to Reconsider Grant of Summary Judgment Granted

Judge Hanen granted the motion to reconsider (coincidentally by plaintiff Backoff) and revised his order. Agreeing that he had erroneously compared the accused device with the figures in the patent, not the claims, he concluded that with that comparison excluded there were fact issues as to literal infringement as well as infringement under the doctrine of equivalents.