Judge Talwani allowed in part and denied in part a joint motion for a protective order. The motion was allowed insofar as it governed exchange of documents and information between the parties. The motion was denied without prejudice, however, insofar as it purported to designate what the court would allow to be filed under seal. In keeping with past practice, Judge Talwani propounded a strong defense of the presumptive public right of access to judicial documents, whereby only the most compelling reasons would permit the filing of documents. To that end, a party seeking to impound must show, on a document-by-document basis, a particular factual demonstration of potential harm by making a document or other information public.
Following construction of the claims, Judge Capser denied Philips’ motion for summary judgment of validity. WAC had sought inter partes review on several grounds, some of which were denied. Judge Casper, citing to Shaw Industries Group v. Automated Creel Systems, found that the Federal Circuit had determined that the estoppel resulting from an unsuccessful IPR did not apply to grounds that were not instituted by the PTO. Judge Casper denied WAC’s motion to compel the deposition of the named inventor of one of the patents-in-suit for lack of relevance. WAC had asserted that the inventor’s testimony was relevant on patent practices at the time the application was filed, prior art, the problem the patent allegedly solves, the underlying development of the technology claimed in the patent, the alleged contribution of each inventor to the patent, and the facts and circumstances surrounding the alleged invention. The problem was that none of these issues related to any claims or defenses of WAC, thus making these issues irrelevant. The court specifically noted, however, that the inventor was no longer an employee and was a resident of France, suggesting that the relevancy might have been sufficient had the witness been more readily available, but did not outweigh the inconvenience of making the witness appear.
As an FYI, the United States Court for the District of Massachusetts are closed due to the blizzard currently dumping snow on the state.
Following up on Friday’s post, Judge Talwani’s Order enjoined the use of The Atomic Café’s trademarks in written and electronic material, but denied the injunction without prejudice with respect to retail sales of Plaintiff’s prepackaged coffee beans, based on Plaintiff’s assertion at argument that it was not seeking to enjoin this use of the mark.
I am in San Francisco for the next few days, at the International Network of Boutique and International Law Firms (INBLF) Annual Meeting. This is a vetted network of boutique law firms that together provide a full range of legal services, while providing the focus on client service that comes with a smaller firm that focuses on a particular area of law. My firm, Lando & Anastasi, is the intellectual property firm of the Boston chapter of the INBLF. I will be posting on IP events in D. Mass. while I am here, but the posts may go up later in the day than is typical.
Judge Young is known in this district for keeping his cases moving. He lived up to that reputation last week, issuing an order denying a motion to continue a bench trial regarding claims of patent infringement based on the filing of an Abbreviated New Drug Application (ANDA). Three days of trial had occurred in March, at which point the Abhai discovered that certain of the tests, the results it had produced in discovery, had been incorrectly performed. Abhai moved to amend its pretrial memorandum to include eight additional exhibits related to the faulty nature of the testing; Judge Young granted the motion but suspended the trial to permit discovery on this new evidence. Shire LLC v. Abhai LLC (15-cv-13909). With trial set to resume in early September, Shire moved for a further continuance of the trial to permit the discovery of new evidence that Shire asserted was relevant to the issue of infringement. One week prior to Shire’s motion, the FDA refused to approve Abhai’s ANDA and directed Abhai to redo all bioequivalence testing on newly created batches of product. Shire contended that the prior product, on which all existing evidence at trial was based, might not be representative of the product that ultimately is approved for sale. Judge Young denied the motion, citing the profound public policy reasons favoring expeditious adjudication of claims brought under the Hatch-Waxman Act (although he declined to identify any in his order).
Silkeen LLC filed suit in the District of Massachusetts yesterday, alleging that Zoll infringes U.S. Patent No. 7,944,469, titled “System and Method for Using Self-Learning Rules to Enable Adaptive Security Monitoring. Silkeen identifies itself as a Texas limited liability company with a principal place of business in Plano, Texas, a common location for non-practicing entities, leading me to believe that in years past, this suit would have been filed in the Eastern District of Texas. Silkeen alleges that Zoll infringes the ‘469 patent through its making and selling of monitor defibrillators, specifically Zoll’s “R Series Monitor Defibrillators.” Many of the allegations relating to specific limitations being found in the Zoll product are “on information and belief,” suggesting that Silkeen has not thoroughly analyzed the accused product.
Silkeen appears to be a non-practicing entity whose business consists solely of bringing infringement lawsuits. An internet search turns up no information on the company other than a series of infringement suits involving the same patent against twenty-six other entities. All twenty-two of Silkeen’s filings prior to 2017 (and thus prior to TC Heartland’s limiting of venue in patent lawsuits) were filed in the Eastern District of Texas. I further note that Silkeen is represented by Ferraiuoli LLC, the same Puerto Rican law firm that sued FitnessKeeper on behalf of Venus Locations LLC, another Plano Texas non-practicing entity, on August 17th.