Intellectual Property – Miscellaneous

June 6, 2012

Publication| Intellectual Property

Judge Stark Denies Plaintiff’s Request to Reargue Its Motion in Limine

In ICU Medical, Inc. v. Rymed Technologies, Inc., C.A. No. 07-468-LPS (D. Del. May 4, 2012), Judge Stark denied plaintiff’s motion requesting reargument of its motion in limine to preclude non-infringement arguments and evidence on elements already deemed literally present in the modified product. Plaintiff asked the Court to reconsider its oral bench ruling denying its motion in limine. The Court found nothing in the motion compelling it to revisit the matter and agreed with defendant that plaintiff’s reargument motion largely repeated the arguments made in its motion in limine and at the pretrial conference.

Magistrate Judge Thynge Grants in Part and Denies in Part Defendants’ Motion to Consolidate and Stay

In Masimo Corp. v. Philips Elecs. N. Am. Corp. et al., C.A. No. 11-742-LPS-MPT (D. Del. Apr. 26, 2012), Magistrate Judge Thynge granted in part and denied in part defendants’ motion to consolidate and stay two related cases. Plaintiff and defendants manufactured competing products in pulse oximetry. Plaintiff originally filed suit in 2009, before filing a second suit in 2011. In response, defendants moved to consolidate and stay the two actions. Magistrate Judge Thynge granted the motion to consolidate, finding that the two cases involved similar patents, parties, and issues and that consolidation would not cause undue delay. However, Magistrate Judge Thynge rejected defendants’ motion to stay.

Magistrate Judge Thynge Grants in Part and Denies in Part Defendant’s Request for Costs

In Cordance Corp. v., Inc., C.A. No. 06-491-MPT (D. Del. Apr. 11, 2012), Magistrate Judge Thynge granted in part and denied in part a bill of costs submitted by defendant that totaled $591,824.69 for printing, electronic discovery, exemplifications, deposition expenses, filing fees, and witness fees. Although plaintiff had filed objections to defendant’s bill of costs and accused defendant of dilatory tactics, Judge Thynge found no evidence of such tactics and approved much of the costs sought by defendant. However, Magistrate Judge Thynge did reduce the costs for electronic discovery and required defendant to distinguish between the costs of converting a document (a recoverable cost) and the costs of processing a document (not a recoverable cost). Judge Thynge also limited the costs for exemplification to the costs associated with the actual presentation of exhibits and documents, and limited the recovery of deposition costs to those depositions designated or used at trial.

Judge Andrews Grants in Part Objections to Magistrate Judge’s Order

In Quantum Loyalty Systems Inc., et al. v. TPG Rewards Inc., et al., C.A. No. 09-22-RGA (D. Del. Apr. 4, 2012), Judge Andrews upheld two of four objections to an order issued by Magistrate Judge Thynge. First, plaintiffs objected to the Magistrate Judge’s ruling that two of defendants’ counterclaims, which sought a declaration of non-infringement and invalidity of two related patents with the same specification as plaintiffs’ asserted patent, stated a case or controversy. In dismissing these counterclaims, Judge Andrews concluded that defendants failed to “show a continuing case or controversy with respect to withdrawn or otherwise unasserted claims,” a standard drawn from a Federal Circuit opinion decided after the Magistrate Judge had issued the order. Judge Andrews overruled plaintiffs’ remaining objections, which concerned the Magistrate Judge’s denial of a motion to transfer certain counterclaims to the Southern District of New York.

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