Brigham and Women’s Hospital, Inc. v. Perrigo Co. (13-cv-11640).

The Federal Circuit upheld Judge Zobel’s grant of JMOL of non-infringement, agreeing that the evidence presented failed as a matter of law to prove that each limitation of the asserted claims was found in the accused product. The patent covered methods for treatment of episodic heartburn by combining known H2-blockers and known antacids to create a product that provides, as the claims recited, immediate and long-lasting relief from heartburn symptoms. The specification defined “immediate” relief as starting within about 5-10 minutes following ingestion. Brigham and Women’s sought to prove infringement by looking to the efficacy data for the commercialized Pepcid Complete® product, which the Perrigo generic (having the same active ingredients and dosages) would necessarily match. The clinical data did not, however, match up with the claim limitations – a first test measuring esophageal pH failed to correlate any particular pH change with relief from symptoms, and the two tests that addressed symptomatic relief did not begin measuring relief until 15 minutes had passed. Brigham and Women’s had asserted only literal infringement, not infringement by equivalents; accordingly, this difference in time was insufficient to prove the product met the claim limitation. The Court declined to rule on Perrigo’s appeal of the denial of JMOL of invalidity, noting that the strong public interest in resolving questions of patentability were absent because the sole patent in suit had had expired in 2012 and there were no related patents in examination and no other lawsuits involving the patent.

LILLEbaby, LLC v. Columbus Trading Partners USA, Inc. et al. (19-cv-10422).

LILLEbaby sued Columbus Trading Partners and its German corporate parent, Cybex GmbH, accusing them of infringing two patents covering child carriers having adaptive leg supports. LILLEbaby sued several other importers and sellers in California, Colorado, Connecticut and Ohio, and filed a complaint with the International Trade Commission seeking to bar entry of the accused products into the United States.

Nike, Inc. v. Puma North America, Inc. (18-cv-10876).

Magistrate Judge Sorokin denied Puma’s motion to compel supplementation of Nike’s preliminary infringement claim charts. Nike, which is asserting seven patents against seventeen Puma products, filed and then supplemented its preliminary infringement contentions pursuant to L.R. 16.6(d)(1)(A). The District of Massachusetts amended L.R. 16 in 2018 to require the patentee produce claim charts providing with as much specificity as reasonably possible a description of where and how each claim element is found in the accused products. Nike’s most recent supplementation, totaling 260 pages, contain full color photographs with annotations showing where each element is located on each accused product. Judge Sorokin found this sufficient at the early stage of the proceedings to meet the requirement of the amended rule.

Cochlear Ltd. v. MED-EL Corporation USA (19-cv-10303).

Australia’s Cochlear sued North Carolina-based MED-EL for infringement of three patents relating to implantable hearing aids. Cochlear asserts that MED-EL’s “Synchrony” Implant System directly and indirectly infringe the subject patents. Cochlear asserts jurisdiction in Massachusetts based on MED-EL being incorporated in the Commonwealth.

Intellectual Ventures I, LLC et al. v. Lenovo Group Ltd. et al. (16-cv-10860).

Judge Cabell granted in part Defendants’ motion to supplement the existing protective order to permit the designation of documents as subject to a patent acquisition bar. This designation would mean that any party or attorney with access to such a document would be prohibited for acquiring patents or applications relating to the same subject matter as the patents in suit, or advising client regarding the same, for a period of two years following the conclusion of the litigation. The motion was allowed as relates to defendant EMC Corporation, but denied as to Lenovo and NetApp. Judge Cabell identified Intellectual Ventures as being in the business of “monetizing patents through litigation and licensing campaigns,” and noted that the business had acquired close to 100,000 patents in its lifetime. After deciding that Federal Circuit law governed the issue, Judge Cabell rejected the majority approach, which required the moving party to first show an unacceptable risk of inadvertent disclosure of confidential information, on a counsel-by-counsel basis, if no bar is put in place, finding that this placed an unrealistic burden on the moving party and contradicted Federal Circuit case law. Instead, he determined that the burden of demonstrating the existence or absence of risk should be on the party who possesses that information, such that once a bar is in place, it is up to the non-moving party to seek exemptions from the bar on a counsel-by-counsel basis. Applying this standard, Judge Cabell found the risk that Intellectual Ventures’ counsel would be unable to compartmentalize the confidential information of EMC when subsequently advising their client on future patent acquisition and litigation. Judge Cabell limited the information that could qualify for this designation to confidential technical information, such as source code and schematics, and excluded confidential financial information from this protection. As to the Lenovo and NetApp defendants, Judge Cabell determined that they had failed to show good cause or a significant risk of inadvertent disclosure of their confidential information, and he denied them the use of the designation.

Sanderson-MacLeod, Inc. v. Hobbs Medical, Inc. (19-cv-30013).

Sanderson-McLeod sued Hobbs Medical for patent infringement, asserting a pair of patents relating to protective tips on wire cleaning brushes. The complaint asserts willful infringement, saying that Hobbs was put on notice in August 2018. The complaint does not indicate which claims of the asserted patents are infringed, or what products are accused of infringement, which may lack sufficient detail to survive a challenge.

Deetz Family, LLC v. Rust-Oleum Corporation (16-cv-10790).

Judge Hillman denied Deetz’s emergency motion to quash the deposition of a former Rust-Oleum employee that was noticed after the close of discovery. Rust-Oleum noticed the deposition in an attempt to obtain testimony that could be entered at trial, as the ex-employee now resides outside of the subpoena power of the court. Judge Hillman, noting that the ex-employee was more of a “friendly” witness for Rust-Oleum and that Deetz had discouraged the ex-employee from voluntarily appearing at trial, determined that the deposition was more in the guise of preserving testimony than in collecting discoverable evidence, which makes the deposition permissible despite being noticed past the close of discovery. To allow for meaningful cross-examination, Judge Hillman further ordered that Deetz would be permitted to take two hours of discovery testimony before the preservation testimony would begin.