Judge Saylor granted Defendants’ motion to partially strike SiOnyx’s Fourth Amended Initial Contentions. SiOnyx had sought to reintroduce a claim that had been initially asserted but voluntarily dropped because it was undergoing inter partes review. After the IPR decision upheld the claim, only two days before defendants’ expert was to be deposed and subsequent to opening and rebuttal expert briefs, SiOnyx served the amended contentions with the claim re-added. Judge Saylor noted that there was no good cause shown to permit reinsertion of the claim into the case, and that (to the extent SiOnyx believed it needed to wait on the PTAB’s decision, it was free to seek to stay or modify the schedule. Defendants were entitled to rely on SiOnyx’s decision to withdraw the claim.
The Crane/Rolling Optics case continues rolling towards trial, with Judge Sorokin excluding proposed testimony from Rolling Optics’ technical expert. The court construed claim terms in February 2016, and the parties briefed and argued summary judgment motions based on the Court’s constructions. Rolling Optics never sought reconsideration of the construction of a particular term, “shaped posts,” which had been construed to mean “shaped as pieces fixed in an upright position,” but argued at summary judgment that this construction precluded portions that were wider than they were tall. Judge Sorokin rejected this secondary construction and noted at the time that Rolling Optics had failed to contend that the Court’s actual construction required any further discovery. In February, Rolling Optics indicated it intended to secure a supplemental expert report to address the Court’s shaped post ruling at summary judgment, but failed to seek an extension of the expert discovery period, to make the expert available for deposition, to explain how such a supplemental disclosure might impact the trial date, or identify the portion of the expert’s initial report that required amendment. Judge Sorokin ruled on February 13 that no further expert discovery would be allowed, effectively rejecting the proposed supplemental disclosure. Rolling Optics nevertheless indicated at the final pretrial conference that it intended to elicit testimony from the supplemental disclosure, which Crane promptly opposed. In addition the reasons laid forth above, Judge Sorokin noted that the supplemental declaration’s stated understanding of the construction of “shaped posts” from the summary judgment order was “so plainly wrong as to render his entire Second Supplemental Declaration inadmissible as unreliable, irrelevant, and posing too great a risk of confusion,” and the proposed testimony was excluded.
Judge Zobel, having issued a claim construction that rendered Emseal’s infringement position unfeasible, issued a final judgment of non-infringement pursuant to Fed. R. Civ. P. 54(b). MM Systems had opposed Emseal’s motion for entry of final judgment of non-infringement on the grounds that, absent a tolling of the statute of limitations on its counterclaims, it would most likely lose the ability to pursue those claims. Emseal had sought to have the counterclaims dismissed with or without prejudice, or in the alternative to enter final judgment under Rule 54(b) and stay the counterclaims. MM Systems was concerned that, with the litigation having been filed in 2014, a dismissal of its counterclaims would result in their not being capable of being refiled, as a dismissed complaint is treated as though it never existed for Federal statute of limitations purposes, and provides for refiling within one year for state statute of limitations purposes. MM Systems also asserted that the Federal Circuit would not accept jurisdiction if the counterclaims were stayed rather than dismissed (although I note that the principal case cited for this proposition, Pause Technology v. TiVo, notes that the Federal Circuit lacks jurisdiction in such circumstances “short of meeting the conditions specified in Rule 54(b)…”). Judge Zobel stayed any activity relating to the counterclaims pending the outcome of the appeal.
Syneron, Candela Corporation, and the Massachusetts General Hospital sued a number of different entities in multiple filings in the District of Massachusetts, accusing them of infringing U.S. Patent Nos. 9,095,357 and 9,510,899, each directed to dermatological treatment and tissue reshaping. The defendants are:
– EndyMed Medical (18-cv-10678);
– Cutera, Emvera Technologies, Illooda, and Rohrer Aesthetics (18-cv-10679);
– InMode MD, Invasix, and Ivasix (18-cv-10680);
– Jeisys Medical and Perigree Medical (18-cv-10681);
– Lumenis and Pollogen (18-cv-10682);
– Lutronic (18-cv-10683); and
– Aesthetics Biomedical, Cartessa Aesthetics, and Sung Hwan E&B Co. d/b/a SHENB Co. (18-cv-10684).
Syneron claims to be the exclusive licensee to the patents for clinical applications, and to market a product, known as Profound, that practices the inventions of the two patents. The product delivers radio frequency energy through microneedles to the dermis below the skin, causing small regions of damage; the healing process produces collagen that pushes out wrinkles and smooths skin. Syneron accuses manufacturers, importers and sellers of similar devices of direct, contributory and induced infringement. Syneron claims personal jurisdiction in Massachusetts exists with respect to at least some of the defendants by way of interactive websites available in(but not necessarily directed specifically to) Massachusetts. Venue is only generally alleged, however, leaving the viability of Massachusetts as a venue for these cases uncertain. The cases are currently split among Judges Young, O’Toole, Stearns, Gorton, and Magistrate Judge Kelley.
Rothschild accuses Fingent of infringing U.S. Patent No. 7,456,872 by sales of its “ReachOut Suite,” a field service management software application. It is not clear why Rothschild, a Texas entity, is suing Fingent, a New York business, in Massachusetts, and it is equally unclear why venue in Massachusetts is appropriate, as the pleadings related to venue do not appear consistent with the TC Heartland line of cases.
Anuwave accuses cybersecurity company Sophos of infringing U.S. Patent No. 8,295,862 by means of its text security services. The ‘862 patent covers methods of enabling communications via SMS messages that list all services at a terminal station, such as a cell phone, according to meta information found at the terminal station. Anuwave specifically accuses Sophos’ mobile antitheft service, by which users who have lost their phones can enter a “locate” command and password in order to retrieve location information from the phone. Anuwave asserts that Sophos directly infringes the method claims at least when performing internal testing; it does not, however, bring contributory or induced infringement claims, leaving the question of the calculation of damages (assuming, of course, that infringement is proven) a bit up in the air.
Alnylam filed suit against Silence Therapeutics, seeking a declaration that its Patisiran RNA interference product does not infringe five Silence patents. Patisiran is awaiting approval from the FDA for treatment of hereditary transthyretin-mediated ATTR amyloidosis, a genetic disease in which misformed proteins accumulate as deposits in the heart, erves, GI tract, and other organs, bringing forth a number of different symptoms. Currently, other than liver transplants for early-stage sufferers, there are no FDA-approved treatments for the disease. Alnylam asserts that it has spent hundreds of millions of dollars in developing Patisiran. Alnylam alleges that Silence, which has no products on the market or in advanced clinical trials, has claimed that Alnylam infringes the patents by correspondence in the United States as well as by filing infringement suits in Europe and challenging Alnylam patents on the technology in Europe. These disputes are on-going. Alnylam seeks declarations of non-infringment and injunctions prohibiting Silence from asserting infringement of the patents.