Courts to Remain Open Through January 18

The Federal judiciary has announced that they will remain fully open through at least January 18th, pushing the date at which they will run out of money due to the shutdown back a week from their earlier estimates.  Once their existing funds dry up, the courts should remain open using limited funds provide by the Antideficiency Act, with each court making its own determination on how to handle the reduced funding status.  As yet, the U.S. District Court for the District of Massachusetts has not announced their plan, should the shutdown continue through next Friday.

Federal Courts remain open for now.

U.S. Federal Courts remain open, despite the government now being in the second week of the shutdown.  Courts are expected to remain unaffected through about January 11th, using court fees and other funding not requiring passage of an appropriations bill.  Should the shutdown linger, the Courts would continue to operate in some fashion under the Anti-Deficiency Act, with each Court determining its staffing needs.

Realtime Data LLC d/b/a/ IXO v. Scality, Inc. (18-cv-12188).

Realtime, a data compression developer, accuses Scality of directly infringing four patents relating to data compression, as well as alleging contributory and induced infringement. Realtime seeks monetary and injunctive relief, although an injunction likely depends on a finding of infringement of one of the asserted patents, U.S. 9,667,751, as the other three have priority dates of 1998 and 1999 and will likely expire prior to resolution of litigation. Realtime identifies itself as an inventor-owned R&D company that broadly licenses its technology; it (and its subsidiary Realtime Adaptive Streaming) has repeatedly asserted its patents in litigation, and it is unclear whether it licenses outside of the litigation context.

Stross v. IvyMedia Corporation et al. (18-cv-10240).

After photographer Alexander Stross sued Ivymedia for copyright infringement relating to IvyMedia’s alleged use of a Stross photograph in its on-line advertising, Judge Sorokin denied IvyMedia’s motion to dismiss for failure to state a claim on which relief could be granted. IvyMedia subsequently answered and counterclaimed for extortion and fraud. Stross moved to dismiss the counterclaims as being legally and factually baseless and designed to drive up the costs of litigation. Stross further sought an award of attorneys’ fees as a sanction for IvyMedia’s continued baseless motion practice. Judge Sorokin granted Stross’ motions and awarded Stross $9671.09 in fees and costs in connection with the motion to dismiss.

Acushnet Company v. Golf Gods Pty ltd. (18-cv-12093).

Acushnet filed an amended complaint, adding a claim that Golf Gods infringes Acushnet’s D763,682 design patent covering the ornamental design of its golf ball packaging. This adds to the trademark and trade dress infringement claims previously filed by Acushnet, which makes Titleist and Footjoy golf products.

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

Nike sued Puma for infringement of seven Nike patents covering shoes having knitted upper, and alleged that after it notified Puma about the patents prior to filing suit, Puma not only failed to cease making and selling the accused products, Puma also introduced new shoes to the market that infringed the patents. Puma moved to dismiss the claims with respect to two of the patents as directed to non-patentable subject matter, asserting that one was directed to the abstract idea of forming an outline pattern on a textile and does not disclose an inventive step towards achieving the outline pattern, and that the second is directed to the abstract idea of generating a visual pattern on a textile, which is nothing more than a non-patentable work of art. Judge Sorokin disagreed, finding that the claims, which were directed to tangible manufactured items (i.e., shoes) or to physical components thereof or methods of manufacturing the same, they passed muster under the first prong of the Mayo test as being directed to a statutorily provided category of patent-eligible subject matter. He further noted that, even if they did not, Puma had not met its burden of demonstrating by clear and convincing evidence that the claims lacked an inventive step that would meet the second prong of the Mayo test. Judge Sorokin also denied Puma’s motion to dismiss the willfulness charges, finding Puma’s suggestion that more must be pled than knowledge of the patent and continued infringement remained an open question (albeit one that other Massachusetts judges had found incorrect), but that Nike had sufficiently pled additional facts that would support a finding of willfulness.

MedIdea, L.L.C. v. DePuy Orthopaedics, Inc. (17-cv-11172).

MedIdea sued Depuy for patent infringement connected with total knee replacement prostheses in the Northern District of Illinois. Following the TC Heartland decision, the case was transferred to Massachusetts, where it has undergone contentious discovery. Judge Sorokin denied MedIdea’s request for detailed royalty reports, in light of MedIdea’s expert acknowledging that documents already produced provided sufficient information to calculate damages. He also refused to compel production, at no cost to MedIdea, of different sizes of the accused products, finding no authority to require the provision of thousands of dollars of products for free when the sole difference was the size. Judge Sorokin also denied MedIdea’s demand that DePuy produce a 30(b)(6) witness to testify on the nature of DePuy’s search for documents and choice of keywords for searching electronic records, in light of DePuy’s statement that only outside counsel participated in that task and in light of MedIdea’s delay of eight months form the time when the schedule required the parties to meet and confer on electronic discovery issues. Finally, Judge Sorokin granted DePuy’s motion to quash subpoenas to two inventors of prior art identified by Depuy and that served as the basis for institution of an IPR proceeding. Judge Sorokin noted that MedIdea had been obliged to identify any relevant witnesses in its initial disclosures more than a year prior, and had failed to seek to supplement its disclosures. Moreover, the reference was more than ten years old, and was but one of many references cited by DePuy, but was the sole reference on which the IPR was granted, creating an inference that MedIdea was seeking their depositions in the litigation to circumvent rules that would prohibit such in the IPR proceeding itself.