A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: sj

In a new standing order today, Judge Connolly announced a new procedure for SJ motions in patent cases. Going forward, he will require parties in all patent cases (current and future) to rank their summary judgment motions, and if any motion is denied, he will generally deny all lower-ranked motions as well:

1. A party that files more than one summary judgment motion shall number each motion to make clear the order the party wishes the Court to consider the motions in question. The first motion the party wishes the Court to consider shall be designated #1, the second motion shall be designated #2, and so on.
2. The Court will review the party’s summary judgment motions in the …

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Person Catching Light Bulb, Júnior Ferreira, Unsplash

This week, Judge Andrews dismissed a summary judgment motion on inequitable conduct.

Plaintiff argued—apparently correctly—that the defendant had never pled inequitable conduct at all. And, when the plaintiff moved for summary judgment on inequitable conduct, the defendant did not file any answering brief opposing the motion (although a defendant in a related action filed brief a brief for "all Defendants").

So why was the seemingly unopposed motion dismissed rather than granted? As explained by Judge Andrews:

I do not think I can grant summary judgment against a party on an issue that is neither raised by the pleadings nor asserted by the party in the briefing. Inequitable conduct is not an …

Chief Judge Stark this week granted a motion of non-infringement under the doctrine of equivalents due to the slim DOE analysis relied on by the patentee's expert.

Interestingly, the expert had offered some testimony framed in terms of the usual function-way-result DOE test:

[T]he Accused Products perform substantially the same function (producing densitometry/densitometric models for use in assessing bone density), in substantially the same way (determining linear attenuation coefficients of an object in several tomographic scans and combining this information using the Feldkamp algorithm to determine the grayscale values of voxels and the corresponding HU units thereof of a 3D CBCT volume of the object), to achieve substantially the same result (3D volumes that include information for depicting quantitative differences …